Terms and Conditions

AERSERV AD SERVING TERMS AND CONDITIONS

 

These AerServ Ad Serving Terms and Conditions (“Agreement”) between You and AerServ LLC acting on behalf of itself and its affiliates and parent (collectively “AerServ”) constitute the terms and conditions for your use of the AerServ Mediation Platform and participation in the aerMarket (collectively, the “Services”). “You” or “Your” means any entity identified in an enrollment form.

YOUR USE OF THE SERVICES IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE THE ANY OF THE SERVICES.

1. THE SERVICES

Mediation Platform: The “Mediation Platform” allows You to serve Your or third party advertisements that You make available to AerServ (the “Ads”) for display on the applications and websites that You designate (“Mobile Properties”), based upon the criteria selected by You via the AerServ online user interface provided by AerServ (the “AerServ Interface”).

aerMarket: “aerMarket” allows You as a publisher to offer and sell Your available ad inventory (“Inventory”) to advertisers who are buyers in the aerMarket who desire to display and serve their ads (“Buyer Ads”) on Your Mobile Properties, based upon the selling criteria selected by You via the AerServ Interface.

AerServ may change, suspend or discontinue any of the Services (or Your access thereto) at any time without notice or liability.

2. FEES & PAYMENT TERMS

Mediation Platform: AerServ will provide its Basic Mediation Platform free of charge for any Mobile Properties that participates in aerMarket.  If You upgrade to AerServ’s Premium Mediation Platform, then You will be charged a fee set forth in a separate insertion order for Ads served on Your Mobile Properties from AerServ’s Premium Mediation Platform (“Premium Mediation Fees”). However, if a Mobile Property is a participant in aerMarket, then AerServ will waive the Premium Mediation Fees with respect to impressions served through aerMarket on the participating Mobile Property.  Notwithstanding the foregoing, AerServ reserves the right to charge or change the mediation fees. If AerServ elects to charge or change such fees, AerServ will give you 30 day advance notice, during which period You will have the right to terminate Your use of the Mediation Platform. AerServ will invoice You monthly for mediation fees and You agree to pay all amounts within 30 days of the invoice date. Any amounts due that are not received by the date due will be subject to a late fee of the lesser of 1.5% per month or the maximum charge permitted by law. You shall pay the amounts due without deducting any taxes. You are responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable, other than taxes based on AerServ’s income.

aerMarket: aerMarket allows You to monetize Your Inventory on Your Mobile Properties by paying You a revenue share of the fees actually collected by AerServ from buyers. AerServ will pay You a revenue share of the Net aerMarket Revenue (as defined below) generated by Your Inventory (the “Revenue Share Fee”) as set forth in a separate insertion order signed by the parties. “Net aerMarket Revenue” means fees actually collected by AerServ from third party advertisers whose Buyer Ads were served to Your Inventory, less any media buying fees or bid reductions, operating fees, fraud, charge backs, refunds, uncollected amounts, credit card processing fees and other reasonable and customary deductions.

Payment terms are Net-30 after the last day of applicable calendar month in which AerServ received the applicable Net aerMarket Revenue from Advertiser(s).   If You are both a Mediation Platform user and a participant in aerMarket, then, in AerServ’s election, AerServ may offset the Revenue Share Fee owed to You by the amount of Premium Mediation Fees owed to AerServ. AerServ will reasonably and in good faith determine how to measure the number of impressions, inquiries, conversions, clicks, offers, installations, or other actions taken by third parties in connection with Buyer Ads and Ads, and all payments will be based on such measurements, and such determination shall be final and binding. You are responsible for all withholding, sales, use, value added or other taxes, duties or charges that are imposed by any jurisdiction on the transactions described in this Agreement, other than taxes based on AerServ’s income. You hereby acknowledge and agree that AerServ reserves the right to withhold payment to You if AerServ, in its sole discretion, determines You have, directly or indirectly, engaged in any deceptive or fraudulent activity or have breached any provision of this Agreement, including but not limited to Your failure to comply with Section 5 (Your Obligations) of this Agreement and Your placement of Buyer Ads or Ads on any Mobile Properties not specifically approved by AerServ.  In addition, You acknowledge and agree that buyers of Buyer Ads reserve the right to refuse to pay on impressions, clicks or actions determined to be fraudulent, artificially inflated or otherwise invalid, and that You will not be paid if AerServ does not receive such payment from an applicable buyer of Buyer Ads; provided, however that AerServ agrees it will use commercially reasonable efforts to investigate, demand reasonable evidence, and obtain payment from, such buyer of Buyer Ads.  Unless otherwise stated, all payments shall be made in U.S. dollars and all amounts referenced herein refer to U.S. Dollars. You hereby acknowledge and agree that no payments will be issued by AerServ for any amount less than $100 U.S. Dollars and any unpaid earnings will rollover and accrue to the next pay period.  For international wires, You acknowledge and agree that payments to you must meet a minimum of $500 U.S. Dollars before a wire can be processed. Wire fees incurred by AerServ will also be assessed against Your account, if applicable.

3. IMPLEMENTATION AND USE

You will implement and use the Services in a manner that complies with the technical and implementation requirements provided by AerServ from time to time, which may include integration or distribution of the most current version of the software, implementation of APIs or SDKs, complying with protocols and any other instructions contained in any documentation provided by AerServ from time to time (the “Protocol”).

4. REGISTRATION

As a condition to using the Services, You will be required to register with AerServ and select a password and enter Your email address and other registration information. You shall provide AerServ with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of Your account. You shall be responsible for maintaining the confidentiality of Your account password.

5. YOUR OBLIGATIONS

(a) Ads and Content. You are solely responsible for all of the Ads and related urls, content and subject matter, editorial, text, graphic, audiovisual, and other content and any other information You make available for or use in connection with the Services, whether generated by or for You, including but not limited to Your Ads, the serving of Buyer Ads, and all aspects of Your Mobile Properties (“Content”).

(b) Your Account. You will protect any accounts, usernames or passwords and take full responsibility for Your own, and any third party, use of the same and ensuring that all information, including but not limited to, full name, contact address, and bank account information is up-to-date, complete and accurate. You acknowledge and agree that Your payments may be delayed in the event that your account information is not up-to-date, complete and accurate. Misrepresenting ownership and fraudulent claiming of applications and/or mobile web inventory in the AerServ Interface and/or on any AerServ platform is strictly prohibited and may result in a permanent ban from use of the Services. AerServ reserves the right to suspend, deny and/or revoke access to the Services at its discretion if Your activities are deemed a threat to the integrity of the Services or aerMarket and its participants.

(c) Policies. Use of the Services is subject to all applicable AerServ ad specification requirements and policies provided to you from time to time via written notice (including e-mail) or posting on AerServ’s website or the AerServ Interface (collectively, the “Policies”). AerServ reserves the right, at its discretion, to modify the Policies at any time by posting a notice on its website, the AerServ Interface, or by sending You a notice via email or postal mail. Your use of the Services following such notification constitutes Your acceptance of the modified Policies. If You are using the AerServ Mediation Platform or You are offering or selling Your Inventory through aerMarket and AerServ is obtaining any EEA User Personal Data (as defined under the GDPR) from You or Your third parties through SDK integration or otherwise,You agree that AerServ is a joint controller, acknowledge that as the first party controller You will obtain relevant User consent for AerServ’s use of such Personal Data and accept the Data Protection Rider: https://www.aerserv.com/publisher-data-protection-rider/

(d) Privacy Policy.  You agree that all Mobile Properties shall have a posted privacy policy that: (i) complies with all applicable laws, rules and regulations, (ii) accurately discloses the data collection, use and disclosure practices applicable to such property, including the fact that data (including geo-location data) collected on such property will be used to target ads at other properties, (iii) discloses that data will be shared with third parties or the purpose of demographic, behavior and geographic ad targeting, and (iv) discloses the use of one or more third parties for ad serving activities.  You further agree that the privacy policies posted on the Mobile Properties shall provide end-users with a conspicuous link to a functional opt-out page, which may include, if applicable, an industry-standard opt-out page such as the Network Advertising Initiative’s (“NAI”) page accessible via its consumer website at www.networkadvertising.org or where most users of Mobile Properties are EU-based, to the Internet Advertising Bureau’s opt-out page at www.youronlinechoices.com.

Prior to first collecting any data (including geo-location data), You must (A) notify end users in a legally sufficient manner that the applicable Mobile Property will collect such data (including precise geo-location data) and use and share such data with third parties for the purpose of ad targeting and (B) obtain any needed end user opt-in.  AerServ strongly encourages You to either (Y) obtain affirmative end user assent, and/or (Z) follow the recommendations made in Privacy on the Go: Recommendations for the Mobile Ecosystem, published by the California Department of Justice at https://oag.ca.gov/sites/all/files/pdfs/privacy/privacy_on_the_go.pdf (and any future recommendations and requirements) and/or in Mobile Privacy Disclosures: Building Trust Through Transparency” published by the Federal Trade Commission at http://www.ftc.gov/reports/mobile-privacy-disclosures-building-trust-through-transparency-federal-trade-commission (and any future recommendations and requirements).  You must also respect any “Do Not Track” signal in accord with applicable law.  You must also comply with the NAI Mobile Applicable Code, including all updates if You are a member of the NAI.  For users of Your Mobile Properties in the European Union, You must provide such users with clear notice of, and obtain such users’ consent to, the transfer, storage, and use of their information in the United States and any other country where AerServ and its partners and customers operate, and shall further notify such users that the privacy and data protection laws in some of these countries may vary from the laws in the country in which such users live.

Where and to the extent required by applicable law and/or regulation, Mobile Properties will include a posted notification to end-users relating to the use of cookies or any other method of user, segment, or audience synchronization, mapping or matching (including for the purposes of interest-based online advertising) which links, at the user’s option, to further information which accurately discloses the use of such technology and user controls (through privacy policies or otherwise).  You agree to comply with the terms of the privacy policies posted on the Mobile Properties.   AerServ does not collect or wish to receive any information that would allow the identification of a natural person (“PII”) from Mobile Property end-users, and You agree that You will not pass or provide any such end-user PII to AerServ.  To the extent that PII, sensitive or personal information, or any other data is collected from Mobile Property end-users and passed to AerServ, You represent and warrant that all appropriate consents and waivers have been or will be obtained from such end-user.

(e) Ad Tags.  To the extent applicable, AerServ will deliver Ad Tags to You.  You will not modify the Ad Tags, and will only place the Ad Tags on approved Mobile Properties in accordance with reasonable trafficking instructions provided by AerServ.  You understand that any modification to the Ad Tags or failure to comply with trafficking instructions may result in errors and discrepancies for which AerServ is not responsible.  You will disable or remove the Ad Tags from the Mobile Properties within two (2) business days of AerServ’s request.  For the purposes of this paragraph, “Ad Tags” means any HTML, JavaScript or other programming code that requests an Ad from AerServ’s ad server.

(f) Prohibited Actions. You will not, and will not allow any third party to: (i) directly or indirectly access, launch or activate any Services through or from, or otherwise incorporate the Services in, any software application, website or other means other than the Mobile Properties; (ii) transfer, sell, lease, syndicate, sublicense or lend any Services; (iii) directly or indirectly generate queries, or impressions of or clicks on ads, through any automated, unethical, deceptive, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro programs, and Internet agents); (iv) unless otherwise agreed to in writing by AerServ, encourage or require end-users or any other persons, either with or without their knowledge, to click on ads, including without limitation Ads, through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent; (v) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Service, AerServ’s then current Protocol, or any other AerServ technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation; (vi) remove, deface, obscure, or alter AerServ’s proprietary rights notices affixed to or provided as a part of any Service, the Protocol, or any other AerServ technology, software, materials and documentation; (vii) create or attempt to create a substitute or similar service or product through use of or access to any of the Services or proprietary information related thereto; (viii) use any feature or functionality of any Service, or include anything in the Content or Ads, that could be used to personally identify or personally track individual end-users or any other persons; or (ix) engage in any action or practice that reflects poorly on AerServ or otherwise disparages or devalues AerServ’s reputation or goodwill. You shall not contribute, submit or make available through the Services, or use the Services in connection with, any content that is infringing, libelous, defamatory, obscene, pornographic, abusive, offensive or otherwise violates any law or right of any third party (collectively, “Prohibited Content”).

(g) No Endorsement. You acknowledge and agree that AerServ is not affiliated with or responsible for any third-party products/services You may choose to manage or use in connection with the Services. AerServ reserves the right, but will have no responsibility, to edit, modify, refuse to post or remove any Prohibited Content, in whole or in part, that in AerServ, in its sole and absolute discretion, deems is objectionable, erroneous, illegal, fraudulent or otherwise in violation of this Agreement.

(h) Compliance. AerServ may investigate any activity that may violate this Agreement. If You violate this Agreement or any Policies or Protocols, AerServ may in its sole discretion, without notice, terminate this Agreement, or suspend or terminate the participation of Your Mobile Property(ies) in all or part of the Services. Furthermore, AerServ may refuse to process a request for Your Ads (“Requests”) that are, in AerServ’s sole discretion, not in compliance with the terms or requirements of this Agreement.

(i) Advertisers. You are solely responsible for all matters related to Your third party advertisers who provide advertisements to You in connection with the Mediation Platform (“Advertisers”), including without limitation the solicitation and trafficking of Your Ads, billing and payment of Your Advertisers, providing all technical support services to Your Advertisers, and handling all other inquiries and disputes of any type or nature. You are solely responsible for all aspects of the Mobile Properties and Your Inventory, including handling all inquiries and disputes of any type or nature.

(j) Children’s Online Privacy Protection Act. If You implement any Services on Mobile Property or section of a Mobile Property that is covered by the Children’s Online Privacy Protection Act (“COPPA”), You must (a) notify AerServ of any Mobile Properties covered by COPPA when registering such Mobile Property, (b) certify that such Mobile Property is in full compliance with COPPA, and (c) not use interest-based advertising (including remarketing) to target: (i) past or current activity by users known by You to be under the age of 13 years or (ii) past or current activity on Mobile Properties directed at users under the age of 13 years. Without limiting the foregoing, You are responsible for ensuring that all demand partners You include in Your Mediation Platform are in full compliance with COPPA.

(k) Use of Trademarks and Logos.  From time to time, AerServ may list (or otherwise market) publishers using the Services on AerServ’s website or other marketing materials (collectively, “Marketing Materials”) to promote Your Mobile Properties to potential advertisers.  As a condition to You using the Services, you hereby consent to AerServ’s use of Your name, logos, trademarks and service marks as they appear on Your website or application without material alterations in AerServ’s Marketing Materials.

6. LIMITED LICENSE

(a) Subject to the terms and conditions of this Agreement, You shall have the right during the Term (as defined below) to access and use the Services via the AerServ Interface solely for purposes of: (i) performing projections of advertising impression inventories that might be available through the Services, (ii) uploading and storing Ads for delivery through the Services, (ii) selecting targeting and delivery criteria for the delivery of Ads, and (iv) receiving reports of Requests, impressions and other data related to the delivery of Ads through the Services.

(b) During the Term, You grant AerServ a license under all of Your applicable rights to host, serve, route and place Your Ads.

(c) You agree that AerServ may include an AerServ attribution on any Buyer Ads and Your Ads transmitted by AerServ in response to a Request.

7. EQUIPMENT

You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access or use the Services, including, without limitation, hardware devices, software, and other Internet, wireless, broadband, phone or other communication device connection services. You shall be responsible for ensuring that such equipment or ancillary services are compatible with the Services and You shall be responsible for all charges incurred in connection with all such equipment and ancillary services, including any fees charged for airtime usage and/or sending and receiving messages or related notifications.

8. TERM AND TERMINATION

This Agreement will be effective as of the date AerServ activates Your Services account and will continue unless earlier terminated as provided in this Agreement (the “Term”). Either party may terminate this Agreement at any time with at least ten (10) days’ prior written notice to the other party. AerServ may also terminate or suspend any and all services and access to any Service immediately, without prior notice or liability, if You breach any of the terms or conditions of this Agreement, the Protocol or the Policies. Upon termination of your account or this Agreement, Your right to use the Services will immediately cease and You will remove all AerServ code from the Mobile Properties. All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability. Upon expiration or termination, all Mediation Fees shall become immediately due and payable.

9. DATA USE

(a) Limited Right to AerServ Data. The Services may provide You with the ability to purchase, deliver, track advertisements or manage and optimize sale of ad inventory using data that may be, in whole or in part, derived from AerServ Data. You may use AerServ Data solely as necessary for You to use the Services and for no other purpose. Without limiting the generality of the foregoing, You (i) will not, directly or indirectly, disclose AerServ Data to any third party or use AerServ Data for the benefit of any other party, including using such data for research and development, modeling, or providing services to any other party, (ii) will not, directly or indirectly, use or reuse AerServ Data for (A) device or cross-device identification, (B) targeting, including retargeting, (C) sequencing, or (D) creative optimization, except as specified and allowed in specified campaigns for which it was purchased under this Agreement, and (D) will not, directly or indirectly, reverse engineer any AerServ Data that is masked, hashed, aggregated, or otherwise protected. “AerServ Data” means (X) the data that is provided by or originating from AerServ, including but not limited to AerServ user registration data and/or data acquired by AerServ from third parties including, but not limited to, geographic locations, gender, age, search queries, and data generated through any Mobile Property owned, operated or provided by AerServ, (Y) any data derived or inferred from the data described in the preceding clause (X), and (Z) the data or other information collected by AerServ in connection with the performance of the Services, including any bid request information You make available via aerMarket or otherwise in connection with the Services. You hereby acknowledge and agree that AerServ may use, store, disclose and transfer AerServ Data to advertisers, potential advertisers, media agencies or other third parties. AerServ Data is AerServ Confidential Information.

(b) User Volunteered Data. If You enable the collection and use of any User Volunteered Data via Ads, You must expressly disclose to such individual end-user that such collection is solely on behalf of You or Your advertisers (and not AerServ). As between AerServ and You, User Volunteered Data shall be Your or Your advertiser’s sole property and shall be subject to Your or Your advertiser’s posted privacy policy. “User Volunteered Data” means any personally identifiable information of end-users collected by You or Your advertiser via any Ad.

10. CONFIDENTIALITY

You agree not to disclose AerServ Confidential Information without AerServ’s prior written consent. “AerServ Confidential Information” includes without limitation: (i) all AerServ software, technology, programming, specifications, materials, guidelines and documentation relating to the Services, including the existence and content of this Agreement and any information provided pursuant to the Agreement; (ii) any statistics relating to the performance of the Services; (iii) any information designated in writing by AerServ as “Confidential” or an equivalent designation and (iv) any other information that a reasonable person would expect it to be confidential because of the nature of the information. AerServ Confidential Information does not include information that has become publicly known through no breach by You or AerServ, or information that has been (x) independently developed without access to AerServ Confidential Information as evidenced in writing; (y) rightfully received by You from a third party; or (z) required to be disclosed by law or by a governmental authority.

11. DISCLAIMERS

You acknowledge and agree that AerServ has no control over (and is merely a passive conduit with respect to) any content that may be submitted or published by any advertiser, and that You are solely responsible (and assumes all liability and risk) for determining whether or not such content is appropriate or acceptable.

THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, AERSERV DISCLAIMS ANY IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. AERSERV DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE RESULTS OF ANY ADVERTISING CAMPAIGN, AND YOU ASSUME ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. AERSERV MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES. AERSERV DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. AERSERV EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. AERSERV IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

12. LIMITATION OF LIABILITY

AERSERV WILL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICES), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF AERSERV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL AERSERV’S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE BY EITHER PARTY FOR THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE.

13. REPRESENTATIONS AND WARRANTIES

You represent and warrant that: (a) You are the owner of each Mobile Property or that You are legally authorized to act on behalf of the owner of such Mobile Property for the purposes of this Agreement; (b)You have and will maintain throughout the Term all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to Your Ads or Content to permit AerServ to perform the services contemplated under this Agreement (including without limitation any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of Your Ads or Content); (b) You will not advertise anything illegal or engage in any illegal or fraudulent business practice; (c) all of the information provided by You to AerServ to enroll in the Services is correct and current at all times; (d) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (e) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in Your performance of any acts hereunder; (f) You comply with and have any and all consents, authorizations and clearances from end-users of the Mobile Properties to allow AerServ to collect and use the Data as described in this Agreement, and as may be required for AerServ to provide services hereunder; and (g) You will at all times comply with AerServ Policies.

14. INDEMNIFICATION

You agree to indemnify, defend and hold AerServ, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively “Indemnified Persons”) harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from (a) Your use of the Services, the Mobile Properties, and/or Your breach of any term of this Agreement or the Policies, (b) any third party using Your account, or (c) any violation by You of any intellectual property or other right of any person or entity.

15. NON-EXCLUSIVE RELATIONSHIP

Each party acknowledges that the arrangements and agreements contemplated hereby are non-exclusive and nothing herein shall be deemed to restrict or limit a party’s ability to engage in similar relationships, agreements or arrangements with any other party.

16. MISCELLANEOUS

This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to the conflict of laws provisions thereof. All claims arising out of or relating to this Agreement will be litigated exclusively in the federal or state courts of Orange County, California, USA, and AerServ and You consent to personal jurisdiction in those courts. The Agreement constitutes the entire agreement between the parties with respect to the Services. Any notices to AerServ must be sent to: AerServ LLC, 15420 Laguna Canyon Rd, #200 Irvine, California 92618, Attention: Aerserv Legal via first class or air mail or overnight courier, and are deemed given upon receipt. Notice to You may be effected by sending email to the email address specified in Your account, and is deemed received when sent. AerServ reserves the right, at its discretion, to modify this Agreement or any Policies at any time by posting a notice on its website, the AerServ Interface, or by sending You a notice via email or postal mail. Your use of the Services following such notification constitutes Your acceptance of the modified terms and conditions. AerServ’s waiver of any default is not a waiver of any subsequent default. AerServ shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond AerServ’s reasonable control. Unenforceable provisions will be modified to reflect the parties’ intention, and remaining provisions of the Agreement will remain in full effect. You may not assign any of Your rights hereunder without AerServ’s prior written consent and any such attempt is void. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and You do not have any authority of any kind to bind AerServ in any respect whatsoever.

Exhibit A: CONFIRMATION OF AERSERV-PUBLISHER RELATIONSHIP

TO: Advertisers on aerMarket
FROM: AerServ and Publisher

1. PSA: AerServ LLC, a Delaware limited liability company (“AerServ”) and You have entered into the AerServ Ad Serving Terms and Conditions (the “Agreement”).

2. CONFIRMATION: AerServ and Publisher are executing this Confirmation of AerServ-Publisher Relationship (this “Confirmation”) to confirm to advertisers and potential advertisers (each, an “Advertiser”) the business relationship between AerServ and Publisher. Upon an Advertiser’s request, a copy of this Confirmation may be provided to such Advertiser.

3. APPOINTMENT: Pursuant to the Agreement, Publisher appoints AerServ as an independent non-exclusive representative to market, sell and serve advertising on Publisher’s inventory via aerMarket, and AerServ accepts such appointment.

4. MARKETING: Pursuant to the Agreement, Publisher grants AerServ a non-transferable, non-exclusive right and license to use Publisher’s name, logo and related Publisher information (including site URLs and names of Publisher’s App(s)) to market and sell Publisher’s inventory via aerMarket.

Last Updated: May 17, 2018