Last updated August 31, 2015
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Mobile Ad Network Publisher Agreement
This Mobile Ad Network Publisher Agreement ("Publisher Agreement") is an agreement between Amazon Services International, Inc., a Delaware corporation, Amazon Digital Services, Inc., a Delaware corporation and Amazon Europe Core S.à.r.l., incorporated and with a principal place of management in the Grand Duchy of Luxembourg (each, individually, an "Amazon Party" and, together with their affiliates, "Amazon," "we," "us" or "our") and you (if registering as an individual) or the entity you represent (if registering as a business), in either case as the applicant ("you"). This Publisher Agreement, together with the Program Materials License Agreement (the "PMLA"), contains the terms and conditions that govern your participation in the Mobile Ad Network (the "Program"). "Your Mobile Properties" means all of the mobile properties owned, operated or controlled by you that are approved for participation in the Program . "Amazon Plug-in" means a plug-in between the Amazon Mobile Ads API and any software provided by a third party. You and we are sometimes each referred to generically herein as a "Party" and collectively as the "Parties."
IF YOU (1) USE THE AMAZON MOBILE ADS API; (2) SEND US ANY AD REQUEST WHETHER DIRECTLY OR THROUGH AN INTERMEDIARY, (3) CREATE, USE, OR DISTRIBUTE ANY AMAZON PLUG-IN, OR (4) CONTINUE TO PARTICIPATE IN THE PROGRAM FOLLOWING OUR POSTING OF A REVISED PUBLISHER AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION ON THE PROGRAM WEB SITE, YOU (A) AGREE TO BE BOUND BY THIS PUBLISHER AGREEMENT; (B) ACKNOWLEDGE AND AGREE THAT YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH IN THIS PUBLISHER AGREEMENT; AND (C) REPRESENT AND WARRANT THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS AND THAT YOU ARE AND WILL REMAIN IN COMPLIANCE WITH THIS PUBLISHER AGREEMENT AND THE PROGRAM PARTICIPATION REQUIREMENTS. IN ADDITION, IF THIS PUBLISHER AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER ENTITY, THEN THE PERSON AGREEING TO THIS PUBLISHER AGREEMENT ON BEHALF OF THAT COMPANY OR ENTITY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS PUBLISHER AGREEMENT.
- Description of the Program
The purpose of the Program is to permit you to incorporate advertising made available through the Program ("Ads"), consisting of images, video, text, Ad destination URL, and/or other information (collectively, "Content") on Your Mobile Properties in connection with advertising campaigns ("Campaigns") by Advertisers in order to earn Advertising Fees (as defined below in Section 6). "Advertiser" may be Amazon or a third party advertiser.
To enroll, you must provide us with such information as we request from developers that choose to participate in the Program in the language we request ("Program Application"). Among other things, you must identify Your Mobile Properties in your Program Application. You will ensure that the information you include in your Program Application and otherwise provide to us is at all times complete and accurate. All such information is incorporated into and forms a part of this Publisher Agreement. You may not share any login or password information that is issued to you in connection with the Program with any third party.
We will not serve any Ads to Your Mobile Properties until you provide us with valid taxpayer identification information through the Tax Identity Interview or otherwise satisfy us that you are not a person from whom we are required to obtain tax information. Additionally, if we discover or are notified that the tax information you have provided is not complete and accurate, we will immediately stop serving ads to Your Mobile Properties and we may withhold your Advertising Fees until you provide correct information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information. If you are a non-U.S. resident for tax purposes, you agree that you will perform all integration work related to the Publisher Agreement while you are physically located outside the United States. If, for any reason, you cannot agree to this requirement, you must request an exception from us by using this link. You represent and warrant to us that (a) any mobile property on which you enable Ads to be served is one of Your Mobile Properties, (b) you have obtained the rights necessary for the exercise of all rights granted under this Publisher Agreement, and (c) you will be solely responsible for and will pay any licensors or co-owners any royalties or other monies due to them related to such content.
Before or after the enabling of Ads to be served to Your Mobile Properties we may review your Program Application and request additional information from you regarding the nature and content of Your Mobile Properties and your compliance with the Operational Documentation (and you agree to provide such information).
- Ads on Your Mobile Properties
You may display Ads only on Your Mobile Properties, and only in compliance with this Publisher Agreement. You will receive a unique application ID ("Application Key") for each of Your Mobile Properties and such Application Key must only be used in connection with the display of Ads on that mobile property. You may not use different Application Keys for mobile properties that are identical or substantially similar to each other (for example, two mobile properties with the same binary code, or versions 1.0 and 2.0 of the same mobile property), regardless of whether they have different names. You may not use an Application Key that is issued for one mobile property to enable the display of Ads on a different mobile property. You may not share any Application Key with any third party unless expressly authorized by us in writing. You may not modify Ads or Content we provide to you, or use Ads or Content other than as expressly permitted by this Publisher Agreement. You will not send us more than one Ad Request per end user per page of Your Mobile Properties. Each Ad will have a frequency cap per day per end user as we determine in our discretion. If you are permitted to use an API that is available only on a restricted or ‘beta’ basis (a "Restricted API"), you may not share the Restricted API with any third party.
We may modify or terminate any Campaign at any time. We will make all determinations regarding the selection and display of Ads and administration of the Program in our sole discretion.
- Program Requirements
By participating in the Program, you agree that you will comply with the Program Participation Requirements and all pages, schedules, policies, guidelines, and other documents and materials referenced either in this Publisher Agreement or the distribution portal (collectively, "Operational Documentation"). You agree that you will use the Program and any Content provided to you only in accordance with this Publisher Agreement and the Operational Documentation.
You will promptly provide us with any information that we request to verify your compliance with this Publisher Agreement or any Operational Documentation. If we determine (in our sole discretion) at any time after you begin to receive Ads that the information provided in your Program Application is inaccurate or that any of Your Mobile Properties violates our Operational Documentation, or that you are otherwise in violation of this Publisher Agreement, we may suspend your participation in the Program with or without prior notice to you. Any such suspension will remain in effect until we are satisfied that the information provided to us is complete, accurate, and up-to-date, and that you and Your Mobile Properties are not violating this Publisher Agreement or the requirements of the Operational Documentation.
In addition to any other rights or remedies available to us, we may terminate this Publisher Agreement and withhold any Advertising Fees payable to you under this Publisher Agreement if we determine that you or other persons that we determine are affiliated with you or acting in concert with you did not comply with any requirement described in the Operational Documentation or in this Publisher Agreement; or violated the PMLA or the Mobile App Distribution Agreement.
You hereby consent to us crawling, and otherwise investigating Your Mobile Properties to verify compliance with this Publisher Agreement and the Operational Documentation.
- Responsibility for Your Mobile Properties
You will be solely responsible for (a) Your Mobile Properties, including development, marketing, operation and maintenance, and all content that appears on Your Mobile Properties, (b) your use or distribution of the Mobile Ads API, (c) any Amazon plug-in that you create, use or distribute, (d) your participation in the Program (including your display of Ads( in compliance with this Publisher Agreement and the Operational Documentation, and (e) any action by a Campaign Partner that would violate this Publisher Agreement if undertaken by you.
We will have no liability for these matters or for any of your end users' claims relating to these matters, and you agree to defend, indemnify, and hold us, our affiliates and licensors, and our and their respective employees, officers, directors, and representatives, harmless from and against all claims, damages, losses, liabilities, costs, and expenses (including attorneys' fees) relating to (a) all matters described in this Section 5; (b) your violation of any term or condition of this Publisher Agreement or any Operational Documentation; or (c) your or your employees' negligence, willful misconduct or fraud (each a "Claim"). You will not consent to the entry of a judgment or settle a Claim without our prior written consent, which may not be unreasonably withheld (provided that it shall not be deemed unreasonable for us to withhold consent to any settlement that requires us or any of our affiliates to admit fault or otherwise adversely affects us or our affiliates). You will use counsel reasonably satisfactory to us to defend each Claim. If we reasonably determine that a Claim might adversely affect us, we may take control of the defense at our expense (and without limiting your indemnification obligations).
- Advertising Fees
You will earn Advertising Fees in connection with Ads displayed on Your Mobile Properties. All determinations and calculations of Advertising Fees by us will be final and binding. "Advertising Fees" means the amount we owe you for Qualifying Events, which will be determined in our sole discretion. A "Qualifying Event" occurs when, during the term of this Publisher Agreement: (a) you send us an Ad Request for an ad unit on one of Your Mobile Properties using the correct Application Key, (b) we send you an Ad in response to the Ad Request, (c) you properly display the Ad, and (d) an end user intentionally views or clicks upon the Ad (except for auto-play video impressions). We will only pay you for Qualifying Events.
- Payment of Advertising Fees
For each purchase of impressions from you, the Amazon Party that made the purchase (or its paying agent or other designee) will pay you Advertising Fees on a monthly basis for Qualifying Events in a given month, subject to any applicable withholding or deduction described below or in the distribution portal, approximately 30 days following the end of each calendar month in which the Advertising Fees were earned. Each Amazon Party reserves the right to make separate payments to you of Advertising Fees due under this Publisher Agreement. Any unpaid accrued Advertising Fees in your account may be subject to escheatment under U.S. law.
You are responsible for collecting and remitting any income, value added or other taxes, such as consumption taxes, imposed on the Advertising Fees. Accordingly, unless otherwise stated, the amounts due to you hereunder are inclusive of any taxes that may apply to such payments. Each Amazon Party maintains the right, however, to deduct or withhold any applicable taxes from amounts it owes you, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment to you. If the amounts should be subject to value added taxes we will pay such value added taxes upon receipt of a valid tax invoice from you. Throughout the term of this Publisher Agreement, you will provide us with any forms, documents or other certifications as may be required by us to satisfy any information reporting or withholding tax obligations with respect to any payments under this Publisher Agreement.
- Information Policies
(a) Definitions. As used below:
(b) Our Data:
- "Advertising Data" means all data and information related to our performance under this Publisher Agreement or otherwise related to our providing you with Ads, including Ad Response and Ad Performance Data, but excluding Publisher Data and Program Data.
- "Ad Performance Data" means all information related to the delivery of Ads (e.g., number of Ads served, impressions, clicks, conversions, header information, advertising fee rates, video play duration, video un-mutes, and other delivery-specific metrics).
- "Ad Request" means a request we receive from you or a third party acting on your behalf for an Ad to be displayed on one of Your Mobile Properties.
- "Ad Response" means all information related to any response (or non-response) we provide to an Ad Request (e.g., Ad creative, Ad destination URLs, Advertiser, Advertiser category brand, product and product category, Ad descriptions, and Ad targeting information).
- "Aggregated" where used with respect to our data, means a manner or form in which our data is combined with data from numerous campaigns of numerous Advertisers and precludes identification, directly or indirectly, of any particular Advertiser, brand, product or end user; and where used with respect to your data, means a manner or form in which your data is combined with data from numerous mobile properties and precludes identification, directly or indirectly, of any particular mobile property.
- "Anonymous" where used with respect to our data, means in a manner or form that does not identify or permit identification, association, or correlation of, or with (a) us or our brands or products, (b) any of our affiliates or their brands or products, (c) any Advertiser or their brands or products, (d) the Amazon Mobile Ads API, or (e) the Program, and where used with respect to your data, means in a manner or form that does not identify or permit identification, association, or correlation of, or with (y) you, or (z) any of Your Mobile Properties, brands or products.
- "Children’s App" means a mobile property directed to children under 13 (as defined by COPPA, when COPPA is applicable).
- "COPPA" means the Children’s Online Privacy Protection Act of 1998, as amended, and the rules and regulations promulgated thereunder.
- "End User Data" means information collected from any end user of Your Mobile Properties that will be (a) disclosed to us in connection with the Program, (b) used in connection with the Program, or (c) collected by you or any Campaign Partner as a result of any Campaign we provide to you.
- "PII" means data which, alone, or when combined with other information can be used to identify, contact, or precisely locate a natural person, including the person’s name, initials, date of birth, address, telephone number, e-mail address, financial account number, or government-issued identifier. For the avoidance of doubt, an advertising-specific identifier, whether or not anonymized, that can be reset for a device (e.g., Android Advertising ID, IDFA) is not PII on its own.
- "Program Data" means any data regarding Your Mobile Properties sent as part of your Program Application (e.g., app category).
- "Publisher Data" means your pre-existing data that you provide to us for a given impression, including your Ad Requests.
You agree that Advertising Data is a trade secret of Amazon. Except as expressly permitted by the next two paragraphs, you agree that you will not disclose Advertising Data or any other information we provide you under this Publisher Agreement for any reason. Without limiting the generality of the foregoing, you agree that you will not use or permit a third party to use Advertising Data for retargeting a user or creating or appending data to a non-public profile regarding a user; to inform or improve advertising targeting on behalf of any other advertiser or advertising network; or for your own purposes.
You may disclose Advertising Data: (1) to your employees and affiliates who need to know such information solely to facilitate your delivery of Campaigns under this Publisher Agreement; (2) on an Aggregated and Anonymous basis solely for reporting or marketing purposes; and (3) to the extent required to comply with a court order, law, or direction by a governmental or regulatory agency, provided that you first provide prior written notice to us of such anticipated disclosure and the opportunity for us to object to such disclosure or to seek confidential treatment of such Advertising Data.
You may disclose Aggregated Advertising Data to a third party that is serving as a mediation or analytics provider to you in connection with delivering Campaigns we provide to you ("Campaign Partner
") solely to the extent necessary for such Campaign Partner to deliver such Campaigns, and subject to the restrictions set forth in the remainder of this paragraph. A Campaign Partner must be subject to a written non-disclosure agreement with you that restricts the Campaign Partner’s use and disclosure of Advertising Data solely to the scope contemplated by this paragraph and does not permit the Campaign Partner to use Advertising Data to improve its systems or to use Advertising Data for the benefit of a third party. You must immediately disclose to us in writing your use of a Campaign Partner by using this link
. Notwithstanding any non-disclosure agreement between us, we may disclose the restrictions set forth in this Publisher Agreement to a Campaign Partner. You will be liable for any violation of this Publisher Agreement by a Campaign Partner.
(c) Your Data:
Unless authorized by you, we will not disclose your Publisher Data except (1) to provide reporting to applicable Advertisers for Campaigns that occur on Your Mobile Properties, (2) to disclose Ad Requests and Program Data to third parties to facilitate and optimize the serving and delivery of Ads, (3) on an Aggregated and Anonymous basis, or (4) to the extent required to comply with a court order, law, or direction by a governmental or regulatory agency. For clarity, we may use, collect and compile Publisher Data for our internal purposes, including delivering and targeting ads, reporting and inventory forecasting.
(d) End User Data:
(e) Amazon Plug-ins:
If you create, use or distribute an Amazon Plug-in, you will not collect, use or disclose any data regarding Ads we provide to a mobile property that is not one of Your Mobile Properties.
(e) Displaying Ads on Children's Apps:
You will not send Ad Requests from any Children’s App. You will not send Ad Requests from any mobile property that is not a Children’s App if you know the end user is under 13 years of age.
Publicity and Confidentiality
You will: (a) protect and not disclose information made available by us that is identified as confidential or that reasonably should be considered confidential; (b) use this information only to fulfill your obligations under this Publisher Agreement; and (c) either destroy or return all such information to us promptly when this Publisher Agreement terminates (and, upon request, confirm such destruction in writing). For clarity, Advertising Data is our confidential information and may only be used or disclosed as permitted under Section 8(b) of this Publisher Agreement. This section covers all confidential information regardless of when you receive it. You will not issue any press release or make any other public communication with respect to this Publisher Agreement, your use of the Ads or Content, the Program or your participation in the Program. You will not misrepresent or embellish the relationship between you and us or any Advertiser (including by expressing or implying that we or they support, sponsor, endorse, or contribute to any charity or other cause), or express or imply any relationship or affiliation between you and us, any Advertiser, or any other person or entity except as expressly permitted by this Publisher Agreement.
You grant us, our affiliates, and each of our employees, agents, contractors, and designees any and all necessary rights and permissions, on a royalty-free, worldwide basis, to use your name, the names and app icons of Your Mobile Properties, and the trademarks, trade names, logos, copyrights and other intellectual property provided by or through you for the purpose of fulfilling our obligations under this Publisher Agreement, for reporting purposes, and for marketing and promoting Your Mobile Properties to potential customers and Advertisers in connection with the Program.
In addition to the limited license set forth in Section 1 of the PMLA, subject to the terms of this Publisher Agreement and solely for the limited purposes of displaying Ads in connection with the Program, we grant you a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to (a) display the Ads solely on Your Mobile Properties, (b) distribute the Amazon Mobile Ads API to end users through distribution programs other than the Amazon App Distribution and Services Program, (c) create derivatives of the Amazon Mobile Ads API solely to the extent necessary to create an Amazon Plug-in, and (d) use and distribute an Amazon Plug-in, if you notify users that Amazon is not the author of the Amazon Plug-in, has not reviewed any software contained therein, and does not make any express or implied warranties regarding the Amazon Plug-in, including warranties of merchantability, fitness for a particular purpose or non-infringement. We may, in our sole discretion and with our express prior written consent (email will be sufficient), grant you the right to sublicense these rights to third parties. If you are permitted to sublicense these rights, you agree that you are responsible for any breach of this Publisher Agreement or the Operational Documentation by such third party. This license will immediately and automatically terminate if at any time you do not timely comply with any obligation under this Publisher Agreement or any Operational Documentation, or otherwise upon termination of this Publisher Agreement. In addition, we may terminate this license in whole or in part upon written notice to you. If we terminate this license, we may disable the Amazon Mobile Ads API and any Amazon Plug-in.
Reservation of Rights; Submissions
Other than the limited licenses expressly set forth in Section 10, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to, and you do not, by virtue of this Publisher Agreement or otherwise, acquire any ownership interest or rights in or to, the Program, Ads, Content, any domain name owned or operated by us or our affiliates, Operational Documentation, our and our affiliates' trademarks and logos, and any other intellectual property and technology that we provide or use in connection with the Program. If you provide us or any of our affiliates with suggestions, reviews, modifications, data, images, text, or other information or content about a product or in connection with this Publisher Agreement, any Content, or your participation in the Program, or if you modify any Content in any way, (collectively, "Your Submission
"), you hereby grant us (even if you have designated Your Submission as confidential) a perpetual, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (a) use, reproduce, perform, display, make available and distribute Your Submission in any manner; (b) adapt, modify, re-format, and create derivative works of Your Submission for any purpose; (c) use and publish your name in the form of a credit in conjunction with Your Submission (however, we will not have any obligation to do so); and (d) sublicense the foregoing rights to any other person or entity. Additionally, you hereby warrant that: (y) Your Submission is your original work, or you obtained Your Submission in a lawful manner; and (z) our and our sublicensees' exercise of rights under the license above will not violate any person's or entity's rights, including any copyright rights. You agree to provide us such assistance as we may require to document, perfect or maintain our rights in and to Your Submission.
Compliance with Laws and Self-Regulatory Principles
In connection with your participation in the Program, you will comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, and other requirements of any governmental authority that has jurisdiction over you (federal, state, or otherwise), including laws that govern marketing email (e.g., the CAN-SPAM Act of 2003), user privacy and data security. For any Ads served to users located in the U.S., you will at all times comply with the Digital Advertising Alliance’s (DAA) Self-Regulatory Principles for Online Behavioral Advertising (including the Mobile Guidance issued by the DAA in July 2013) set forth at www.aboutads.info (or any successor website). For any Ads served to users located in the E.U., you will at all times comply with the European Interactive Digital Advertising Alliance’s European Principles, set forth at http://www.edaa.eu (or any successor website). For any Ads served to users located in Japan, you will at all times comply with Japan Internet Advertising Association’s Guidelines for Behavioral Advertising set forth at http://www.jiaa.org (or any successor website). If Your Mobile Properties are available through another distribution program, you agree that any information you make available to a third party regarding your use of any advertising identifier in Your Mobile Properties will be accurate and complete, and that you will properly honor any requirement of that program regarding the tracking of Ads in Your Mobile Properties.
Term and Termination
The term of this Publisher Agreement will begin upon the earlier to occur of your enrollment in the Program pursuant to Section 2, the enabling of Ads to be served to Your Mobile Properties, or our receipt of any Ad Request. Either you or we may terminate this Publisher Agreement at any time, with or without cause, immediately upon providing written notice of termination to the other party. Upon any termination of this Publisher Agreement, any and all licenses you have with respect to Content and the Amazon Mobile Ads API will automatically terminate and you will (1) immediately stop using the Content in Your Mobile Properties, (2) immediately stop using all Restricted APIs in Your Mobile Properties, (3) immediately stop making Ad Requests to the Program, (4) immediately stop using and distributing any Amazon Plug-ins, (5) promptly (and in any event within 10 business days) remove the Amazon Mobile Ads API from any version of Your Mobile Properties that is available for download through any distribution program, and (6) promptly (and in any event within 10 business days) delete all materials provided or made available by or on behalf of us to you in connection with any Restricted API. We may withhold accrued unpaid Advertising Fees for a reasonable period of time following termination to ensure that you have taken these steps and that the correct amount is paid (e.g., to determine whether any event that has occurred is a Qualifying Event). Upon any termination of this Publisher Agreement, all rights and obligations of the Parties will be extinguished, except that the rights and obligations of the Parties under Sections 5, 6, 7, 8, 9, 11, 12, 13, 15, 16, 17, 18, 19, 20 and 22, together with any accrued but unpaid Advertising Fees or other payment obligations of either of us under this Publisher Agreement, will survive the termination of this Publisher Agreement. Additionally, the rights and obligations of the Parties under the last sentence Section 10 (regarding disabling the Amazon Mobile Ads API and any Amazon Plug-in) shall survive any termination of this Publisher Agreement. No termination of this Publisher Agreement will relieve either Party for any liability for any breach of, or liability accruing under, this Publisher Agreement prior to termination.
We may modify any of the terms and conditions contained in this Publisher Agreement or any Operational Documentation at any time and in our sole discretion by posting changes online. Modifications may include, for example, changes to the Program Participation Requirements, payment procedures, and other Program requirements. Changes to this Publisher Agreement will be effective as of the date we post them, unless we specify a different effective date. You are responsible for checking for Publisher Agreement updates. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS PUBLISHER AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF ANY CHANGE TO THE PUBLISHER AGREEMENT OR THE OPERATIONAL DOCUMENTATION WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
Relationship of Parties
You and we are independent contractors, and nothing in this Publisher Agreement or the Operational Documentation will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us or our respective affiliates. You will have no authority to make or accept any offers or representations on our or our affiliates' behalf. You will not make any statement, whether on Your Mobile Properties or otherwise, during or after the term of this Publisher Agreement, that contradicts or may contradict anything in this section. If you authorize, assist, encourage, or facilitate (including through the unauthorized use of your developer password or credentials) another person or entity to take any action related to the subject matter of this Publisher Agreement, you will be deemed to have taken the action yourself.
THE PROGRAM, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US OR OUR AFFILIATES OR LICENSORS IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE "SERVICE OFFERINGS
") ARE PROVIDED "AS IS." NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE PROGRAM, ADS, CONTENT, OPERATIONAL DOCUMENTATION, OR THE DEVELOPER SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS PUBLISHER AGREEMENT.
EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE.
WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS.NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS; OR ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DAMAGE, OR LOSS OF, YOUR MOBILE PROPERTIES OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT.
WE SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING THE NUMBER OR QUALITY OF ADS THAT MAY BE SENT TO YOUR MOBILE PROPERTIES, THE MEANS BY WHICH WE DETERMINE WHICH ADS WILL BE SERVED TO YOUR MOBILE PROPERTIES, THE ADVERTISING FEES THAT YOU MAY EARN FROM THE SERVICE OFFERINGS, AND ANYBENEFIT THAT YOU MIGHT OBTAIN THROUGH YOUR PARTICIPATION IN THE PROGRAM. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY LOSS OF PROSPECTIVE ADVERTISING FEES OR OTHER BENEFITS, ANY EXPENDITURES OR COMMITMENTS BY YOU IN CONNECTION WITH YOUR PARTICIPATION IN THE PROGRAM, OR ANY TERMINATION OF YOUR PARTICIPATION IN THE PROGRAM.
Limitation of Liability
WE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF ADVERTISING FEES, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THIS PUBLISHER AGREEMENT, THE PROGRAM, OPERATIONAL DOCUMENTATION, THE AMAZON SITE, OR THE SERVICE OFFERINGS (DEFINED ABOVE), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS PUBLISHER AGREEMENT, THE PROGRAM, THE AMAZON SITE, AND THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL ADVERTISING FEES PAID TO YOU UNDER THIS PUBLISHER AGREEMENT IN THE SIX MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED. EACH AMAZON PARTY IS SEVERALLY LIABLE FOR ITS OWN OBLIGATIONS UNDER THIS PUBLISHER AGREEMENT AND IS NOT JOINTLY LIABLE FOR THE OBLIGATIONS OF OTHER AMAZON PARTIES.
Any dispute or claim relating in any way to the Program or this Publisher Agreement will be resolved by binding arbitration, rather than in court
, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law and the laws of the state of Washington, without regard to principles of conflict of laws, will govern this Publisher Agreement and any dispute of any sort that might arise between you and us.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Publisher Agreement as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Corporation Service Company, 300 Deschutes Way SW, Suite 304, Tumwater, WA 98501. The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than USD$10,000 unless the arbitrator determines the claims are frivolous. Likewise, we will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.
If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial
. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
Notwithstanding anything to the contrary in this Publisher Agreement, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity's intellectual property or proprietary rights. You further acknowledge and agree that our rights in the Content are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.
You acknowledge and agree that we and our affiliates may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Publisher Agreement or operate sites and/or mobile properties that are similar to or compete with your sites and/or Your Mobile Properties. You may not assign this Publisher Agreement, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, this Publisher Agreement will be binding on, inure to the benefit of, and be enforceable against the Parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Publisher Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Publisher Agreement. Whenever used in this Publisher Agreement, the terms "include(s)," "including," "e.g.," and "for example" mean, respectively, "include(s), without limitation," "including, without limitation," "e.g., without limitation," and "for example, without limitation." Any determinations or updates that may be made by us, any actions that may be taken by us, and any approvals that may be given by us under this Publisher Agreement, may be made, taken, or given in our sole discretion. Subject to the terms of this Publisher Agreement, either Party may use one or more subcontractors to exercise its rights and perform its obligations hereunder. Both Parties will be responsible for ensuring that its subcontractors comply with the applicable portions of this Publisher Agreement when performing for either Party.
Entire Agreement; Conflicts
This Publisher Agreement and the PMLA (and any non-disclosure agreement ("NDA
") that the Parties have entered into with respect to this relationship, if applicable) (collectively, the "Publisher Documents
"), constitute the entire agreement between the Parties with respect to the Program, supersede any and all prior or contemporaneous agreements between the Parties with respect to the Program and do not give any third party (except where specified) any rights or remedies hereunder. In the event of any conflict between the Publisher Documents, they shall be interpreted in the following order of precedence: (1) this Publisher Agreement; (2) the PMLA; and (3) any NDA. In the event of any conflict between this Publisher Agreement and the Operational Documentation, this Publisher Agreement will control over the remainder of the Operational Documentation.
Third Party Software
Notwithstanding the provisions of this Publisher Agreement, other license terms may apply to certain software files contained within or distributed with the Amazon Mobile Ads API that are specifically identified in related documentation, including any license, notice or readme files (collectively, "Third Party Software
"). Such Third Party Software license terms shall apply to the corresponding Third Party Software file in lieu of the terms set forth in this Publisher Agreement. You acknowledge and agree that the Amazon Mobile Ads API contains files built with open source code, and that your license to use, make available and distribute such files in Your Mobile Properties (including through the API Distribution License and any other license provided by the PMLA) is conditioned on your providing to users of Your Mobile Properties the proper notices and disclaimers with respect to such open source code (collectively, the "Open Source Notice
") and that we may terminate your license to use and distribute the Amazon Mobile Ads API in Your Mobile Properties if you fail to provide the Open Source Notice to your users. The required form of Open Source Notice can be found in the notices file that is downloaded with the Amazon Mobile Ads API.
We may communicate with you in connection with your use of the Program electronically and in other media, and you consent to such communications regardless of any customer communication or similar preferences or requests you may have indicated on the Amazon.com web site or by any other means. Any written notice we are permitted or required to send to you may be sent to the email address then currently associated with your account. You will be deemed to have received all communications sent to that address even if the address is no longer current.
This Publisher Agreement is executed in English, and any translation into Japanese is provided only for convenience. In the event of any discrepancy between the English version and the Japanese translation of this Publisher Agreement, the English version of this Publisher Agreement shall control and the Japanese translation has no interpretive value.
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