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 (“Trader” or “You“).
Ogury reserves the right to modify these terms and conditions (“T&Cs” or the “Agreement”) at any time without prior notice. You should print a copy of this Agreement for future reference. Please read these T&Cs carefully before signing up to the Services via our Site. You should understand that by signing up to our Services and using our Site and our Platform, You agree to be bound by these T&Cs.
For valuable consideration, the parties agree as follows:
1. SERVICES DESCRIPTION
1.1. The Ogury Services benefit the Trader, by providing the Trader with the opportunity to disseminate Advertisements on Publisher’s mobile Application(s), which integrate(s) the Ogury Software Development Kit (the “SDK“), or on mobile Application(s) of Publishers which go through Ogury’s Supply Partners to offer Inventory on their mobile Application(s). The Ogury SDK enables Ogury to provide targeted advertisements to the end users of the Publisher’s mobile Application(s).
1.2. To provide the Services, You authorize Ogury to deliver your Advertisements to end user mobile devices through Publisher’s Application(s). For the sake of 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 Publishers (and/or with any Supply Partners) and (ii) negotiate and conclude agreements with Publishers (and/or with any Supply Partners) for the delivery of your Advertisements to end user mobile devices in connection with the Services. Trader shall not interfere with such Ogury Services in any way.
1.3. Participation in the Ogury Services is subject to Ogury’s prior approval and Trader’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.
1.4. Feedback; All comments, feedback or materials submitted by Trader to Ogury about the Services, the Platform or the Site, 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.
2. OPERATION OF THE SERVICES
2.1. Trader’s use of the Services will allow Trader to, among other things, set up its deal parameters to be used with its preferred DSPs, as well as to access to reports provided by Ogury or by its partners. Ogury will not provide any recommendation nor make any decisions in connection therewith.
2.2. Scheduling of delivery of the Advertisements is subject to availability and may not be continuous. Moreover, Ogury cannot guarantee the reach or performance that the Advertisements will receive, such as the number of people who will see your Advertisements or the number of clicks or Impressions your Advertisements will get.
3.1. Trader Rights; As between Trader and Ogury, and subject to the rights and licenses granted to Ogury hereunder as applicable, Trader retains all right, title and interest in and to the Trader’s Advertisements, including all intellectual property rights related to each of the foregoing. All rights not expressly granted by Trader to Ogury herein are hereby reserved by Trader.
3.2. Grant to Ogury; Trader hereby grants Ogury: (i) the right during the term of this Agreement to serve the Trader’s Advertisements to and through the Publisher’s Application(s); and (ii) all rights and licenses in and to the Advertisements, including all content therein, necessary for Ogury to perform its obligations under this Agreement.
3.3. Ogury Rights; As between Ogury and Trader, and subject to the rights and licenses granted to Trader hereunder as applicable, Ogury retains all right, title and interest in and to the Ogury Site, Platform, Services, 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 Trader herein are hereby reserved by Ogury. This Agreement is not intended to give Trader any rights, other than those specifically stated herein, in any intellectual property held by Ogury, including to any trade secrets, trademarks, trade names, patents, copyrights, source codes, computer programs, hardware, software, inventions, designs, configurations, processes, know-how, information and formulae, and any and all components of the foregoing, regardless of form.
3.4. Grant to the Trader; Ogury hereby grants Trader the right during the term of this Agreement to use the reports with respect to the Services provided by Ogury for internal business purposes.
4.2. Ogury represents and warrants that: (a) all of the information Ogury has provided and shall in the future provide to Trader 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 Trader hereunder; (c) it is in compliance with all applicable laws; and (d) the Services do not display, reference, link to, or endorse prohibited content and illegal content.
5. PROHIBITED ACTIONS
5.1. Other than as expressly set forth in this Agreement, Trader shall not, directly or indirectly, nor shall Trader authorize or otherwise permit any third party, to:
i. use the Platform and the Services other than for their intended purpose or in violation of applicable law;
ii. reverse engineer, disassemble, decompile or attempt to uncover the source code, object code, underlying structure, algorithms, know-how or any trade secrets related to the Services or the Platform, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
iii. remove, alter or obscure any proprietary rights on the Platform or the Services;
iv. introduce into the Services or the Platform any software, virus, worm, “back door”, Trojan Horse, or similar harmful code;
v. use the Services in connection with Advertisements that do not comply with Section 4.1.
vi. use the Platform or the Services to create (or facilitate the creation of) any product or service that is in competition with the Ogury SDK or Services;
vii. pass any personally identifiable information on to Ogury or otherwise associate a cookie, web beacon, or other mechanism with personally identifiable information without explicit consent from the end user.
5.2. Trader undertakes not to create unlawful, defamatory, threatening, offensive or otherwise objectionable content regarding Ogury and its Services, in particular, but not exclusively, on the internet, in the press or in any public media. In case of proved defamation or disparagement, Ogury may sue Trader for defamation or for disparagement.
5.3. Should Trader violates the foregoing provisions of this Section 5, Ogury may, in its sole discretion, suspend Trader’s use of the Ogury Services and/or terminate the Trader’s participation in Ogury’s Services (or any portion thereof) immediately without notice, and/or to remove any Advertisements that do not adhere to these guidelines.
5.4. In the event that Trader’s use of the Services is in violation of the policies of the Publishers (and/or of the Supply Partners), Ogury may immediately remove Trader’s access to the Services and/or disable the Advertisement(s) deemed unacceptable, without prior notice to, or approval by, the Trader.
6.1. 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.
6.2. Effect of termination; Upon any termination of this Agreement,
i. Ogury will cease distribution of any Advertisement and, upon request, certify the same in writing to Trader within five (5) business days of such termination;
ii. 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;
iii. Trader shall immediately cease all access to and use of the Services;
iv. Each party will either return to the other party (or provide to other party with supporting documentation of the destruction) all documents, computer files and other materials containing any Confidential Information of such other party that is in the first party’s possession or under control.
7.1. 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 : (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 from the recipient or its employees or agents; (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.
7.2. Each party will, prior to providing any employee or consultant access to any Confidential Information of the other party, inform such an employee or consultant to comply with its obligations hereunder with respect to such Confidential Information. Each party will be responsible to the other party for any violation of this Section 7 by such consultant or employee.
7.3. In the event a party becomes or may become legally compelled to disclose any Confidential Information, this party shall provide to the other party prior written notice of such requirement so that the latter may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section 7.
8. ACCOUNT IDENTIFIERS
8.1. When setting up the Trader’s online account, the Trader 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 Trader access area. The login cannot be changed and identifies the Trader’s account uniquely and permanently. The password is specific to the account and the Trader is not authorized to sell, transmit, sublicense or disclose it to third parties. The Trader is responsible for the Trader’s password and undertakes to keep it confidential. The Trader is fully responsible for the activity on the Trader’s account. Passwords can be modified by Ogury in the case of loss or theft of passwords, or if the Trader suspects that a third party might be able to use them. The Trader is responsible for the accuracy of the information associated with the account (especially the contact details). Ogury cannot be held responsible for any unauthorized access to the Trader’s account, or for any modification, deletion or impairment affecting all or part of the information the Trader will give Ogury in the context of using the Trader’s access account. Breach of this Section 8.1 by Trader shall be deemed to be a material breach of this Agreement.
9.1. To the fullest extent permitted by law, neither Ogury nor the Trader, 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, non-infringement, fitness for a particular purpose. Without limiting the generality of the foregoing, the Ogury SDK, Services 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, Services or Platform will be correct, uninterrupted or error-free, that defects will be corrected, or that the Ogury Services, 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 Services, 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, Services or Platform. Ogury does not warrant the results of the use of the Ogury SDK, Services or Platform. Trader acknowledges that Ogury may modify or suspend the Ogury SDK, Services or Platform at any time in its sole discretion and without notice. Moreover, Ogury does not warrant the accuracy of the reports provided by the Publisher (or by the Supply Partners) and therefore cannot be held responsible in this respect.
9.2. Ogury assumes no responsibility or liability whatsoever for the content of the Publishers’ Applications and Trader understands that Ogury only facilitates interactions between Publishers and Trader by providing targeted advertisements to the end users of the Publisher’s Application.
10. LIMITATION OF LIABILITY
10.1. 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.
10.2. 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.
10.3. Sole and exclusive remedy. If Trader is dissatisfied with the Services, or any of the terms of the Services, Trader’s sole and exclusive remedy is to discontinue using the Services. This remedy is intended to be the sole and exclusive remedy of the Trader under this Agreement.
10.4. 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.
10.5. The parties acknowledge and agree that the allocation of risk in this Agreement is reflected in the level of fees payable under this Agreement.
11.1. To the maximum extent permitted by law, You agree to defend, indemnify and hold harmless Ogury, its Affiliates and their respective directors, officers, managers, 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 Services and Platform (b) any Advertisements you provide to Ogury under this Agreement, that infringes any copyright, trademark, trade secret, patent or other intellectual property rights of any person or defames any person or violates his/her rights of publicity or privacy, (c) any breach or default by You of this Agreement; (d) any allegation that a Trader’s Advertisement violates applicable law; and (e) Trader’s breach of its representations, warranties and covenants set forth in this Agreement.
12.1. As for European end user mobile devices through Publisher’s Application(s), Ogury will comply with applicable data protection law, especially including, but not limited to, the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation, “GDPR”). The parties acknowledge that Ogury functions as an independent data controller and mutually consider that the conclusion of any “controller-to-processor agreements” according to Art. 28 GDPR is deemed not necessary.
13.1. Entire agreement; Amendment. This Agreement is the complete and exclusive agreement between 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 and Site after any such changes shall constitute your consent to such changes.
13.2. 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.
13.3. Force Majeure. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under 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.
13.4. 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.
13.5. 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 original, and all of them constitute one agreement.
13.6. Publicity and Marketing. Trader grants Ogury a worldwide non-exclusive, non-transferable, royalty-free license to use Trader’s company name, service, and/or logos (“Trademarks”) for use by Ogury on Ogury’s website(s) (including the Site), promotional materials, and marketing collateral in conjunction with the Ogury Services. 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 Trader’s rights with respect to the Trademarks.
13.7. COPPA Compliance. Ogury is committed to COPPA Compliancy. For Apps that require COPPA Compliancy, end users are asked to opt-in to the Ogury Services 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 Services.
13.8. 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.
13.9. 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.
13.10. 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.
13.11. Relationship of the parties. No joint venture, partnership, employment, or agency relationship exists between the Trader and Ogury as a result of this Agreement or use of the Services.
“Advertisements” means materials and messages in any format that promote products and/or services of an Advertiser;
“Advertiser” means the entity on whose behalf the Trader uses the Services. For the sake of clarity, the Advertiser can be the Trader;
“Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. An entity shall be regarded as in control of another company or entity if it owns or directly or indirectly controls more than 50% of the voting rights of that company or entity;
“Application” means the Publisher proprietary application(s) in connection with the Ogury Services, including any successor titles, updates and title changes;
“Feedback” has the meaning given to it in Section 1.4;
“Confidential Information” has the meaning given to it in Section 7.1;
“Impression” means a single instance of displaying an Advertisement to a bona fide end-user on such end-user’s wireless device. “Impression” excludes any display of advertisements obtained by fraud or other illegal content where an Advertisement has been viewed in exchange for consideration or monetary incentive and/or by mechanical or other technical means where there is no bona fide, human end-user that actually views the display on their wireless device;
“Inventory” means digital advertising inventory made available for purchase by a Publisher (or by a Supply Partner) through the Services;
“Platform or Ogury Platform” means the Ogury Service, together with the Trader-facing tools and interface on the Ogury Site, which collectively allow the Trader to use and configure the Ogury Service;
“Policies” has the meaning given to it in Section 4.1;
“Publisher” means the entity offering Inventory through an Application;
“Services or Ogury Services” means the for marketers service and any other services provided by Ogury from time to time;
“Site” means the website(s) of Ogury on which the Service and the Platform are available;
“Software Development Kit (SDK)” has the meaning given to it in Section 1.1;
“Supply Partner” means any intermediary entity between the Publisher and Ogury (including SSP);
“Trademarks” has the meaning given to it in Section 13.6.