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to Google map with preset destination 1. To become a customer of the AdMarvel managed mobile advertising and analytics platform for SMS, MMS, WAP and In-App advertising (the platform and management are the "AdMarvel Service") operated by AdMarvel, Inc. ("AdMarvel"), all applicants must read and accept these Terms and Conditions for AdMarvel Service (the "Agreement") and submit an AdMarvel Service Customer application, which must identify the legal entity entering this Agreement ("Customer" or "you") and the SMS and MMS services, WAP sites, and any application (collectively, "Customer Services") with respect to which you desire to implement the AdMarvel Service. It is within AdMarvel's sole discretion to deny your application to become an AdMarvel customer for any reason. After evaluating your application, AdMarvel will notify you of your acceptance or rejection. Only after your receipt of an email from AdMarvel accepting your application will the terms of this Agreement be binding on AdMarvel.
2. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND ADMARVEL. BY CHECKING THE "I AGREE" BOX ON THE ADMARVEL SITE AND SUBMITTING AN APPLICATION YOU ARE AGREEING THAT THE INDIVIDUAL COMPLETING THE APPLICATION AND CHECKING THE "I AGREE" BOX HAS THE AUTHORITY TO BIND YOU, THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THE AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION. YOU AND ADMARVEL MAY EACH BE REFERRED TO AS A "PARTY" IN THIS AGREEMENT, AND ARE, COLLECTIVELY, THE "PARTIES".
3. Commencing as of the date on which AdMarvel informs you that it has accepted your application, AdMarvel will make the AdMarvel Service available to you for use as set forth herein. Further, AdMarvel has developed an application programming interface and associated software libraries and documentation to implement calls to the AdMarvel Service in its customers' WAP sites and MMS and SMS messages (the "API") and multiple software development kits to implement calls to the AdMarvel Service in it's customers' mobile applications (each an "SDK", and together with the API, the "Software"), which AdMarvel will make available for your use, subject to the terms herein.
4. In order for AdMarvel to provide the AdMarvel Service to you, you hereby grant AdMarvel permission to: (a) obtain HTML, Javascript or similar codes for placement in Customer Services in order to call and display advertising (such codes, regardless of the source or specific format are, "Ad Tags") from those advertising networks you may select with which AdMarvel has a master account; and (b) use user names, passwords and Ad Tags provided by you for advertising networks with which you have an account solely in the provision of the AdMarvel Service to you. You agree to follow AdMarvel's instructions, as communicated to you from time to time, with respect to your relationships with advertising networks and any Ad Tags. As between AdMarvel and you, each party's advertising network user names, passwords and Ad Tags are and shall remain their property.
5. Subject to the terms and conditions of this Agreement, AdMarvel grants to you a personal, nonsublicensable, nonexclusive, nontransferable, limited license to use the Software provided to you by AdMarvel for the sole purpose of implementing the AdMarvel Service in the Customer Services in accordance with all documentation supplied by AdMarvel. To the extent that you acquire and use a SDK, you agree that you must obtain an appropriate development license from the supplier of the platform for which such SDK is targeted. AdMarvel may make third party software and documentation available to you for the mutual convenience of you and such third party. To the extent you download and use such third party software and documentation, you agree that its rights in such software and documentation are governed entirely by such license.
6. Except as may be expressly provided herein, neither you nor AdMarvel shall have or obtain any rights in or to any intellectual property of the other in connection with this Agreement. Without limiting the generality of the foregoing, you will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the AdMarvel Service or Software; modify, translate, or create derivative works based on the AdMarvel Service or Software except to the extent the expressly permitted uses of the AdMarvel Software under Section 5 above may be considered derivative works; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the AdMarvel Service or Software; except as expressly authorized hereunder, use the AdMarvel Service or Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. Both you and AdMarvel may identify the other as a partner on their respective website and in marketing and presentation materials during the term of this Agreement.
7. AdMarvel and you will each collect all Revenue for advertising generated through its own advertising relationships and will share with the other any Net Revenue as follows: (a) You will receive 83% of Net Revenue for your display of the advertising, and (b) for provision of the AdMarvel Service, AdMarvel will receive (i) 17% of Net Revenue or (ii) if you sell advertising inventory directly to advertisers, the greater of 17% of Net Revenue derived from such advertising or $1.00 CPM for such advertising. "Revenue" means the gross revenue actually received by a party attributable to advertising associated with the Customer Service in any geographical region in which Customer utilizes the AdMarvel Service during the term after deducting any taxes that the party is required to pay or collect in relation to the sale of such advertising, any payment processing fees, costs of sale, and (with respect to AdMarvel) costs associated with the delivery and maintenance of the Software and AdMarvel Service. "Net Revenue" means Revenue, less any fees paid to or deducted by a third party in connection with the placement of advertising, including without limitation, advertising agency or advertising network fees, costs associated with servicing business partner and advertiser accounts and costs related to creative services. Both you and AdMarvel acknowledge and agree that Revenue and Net Revenue for any month may be subsequently restated if (a) a third party fails to pay amounts due as part of Revenue, or (b) a third party restates the amounts due and payable as part of Revenue.
8. Not later than 15 days following the end of each calendar month, each party will provide to the other party an accounting of the Revenues received by such party during such calendar month, a computation of Net Revenue, any restatement of Revenue or Net Revenue, and the amount that such party computes to be due to the other party (or amounts due from the other party if a downward restatement of Revenue or Net Revenue results in such an outcome). Not later than 45 days following the end of each calendar month, the party owing the other party the larger of the two amounts due shall pay the other party the net amount due after offsetting any amount due from the other party. Neither party shall have any obligation to make a revenue sharing payment until the cumulative amount due to the other party equals or exceeds $500; any amounts due that are less than $500 shall be accrued for payment in the next month in which the total accrued amount due is $500 or more. The parties will share any Net Revenue received by either party after the term to the extent such Net Revenue is attributable to your use of the AdMarvel Service during the term.
9. Each party will maintain complete and accurate records as reasonably necessary to verify such party's performance under this Agreement for no fewer than two (2) years following the end of the term of this Agreement. During the term of this Agreement and for two (2) years thereafter, upon a party's request, the other party will allow such party (or a third-party auditor reasonably acceptable to the audited party) to inspect and audit the audited party's records regarding the audited party's performance under this Agreement. Each party will bear its own costs in connection with any audits; provided, however, that in the event that any audit under this Agreement reveals any underpayment to the auditing party the audited party will promptly reimburse the auditing party for the amount of the underpayment, and if the underpayment is more than five percent (5%) of the amounts that should have been paid, the audited party will promptly reimburse the auditing party for the costs reasonably incurred by the auditing party in connection with the audit.
10. Each party warrants and represents to the other party that (a) it has the power, right and authority to enter into this Agreement and to fulfill its obligations under this Agreement; (b) it is and will remain in compliance with all laws, rules, and regulations applicable to its performance under this Agreement; and (c) it is and will remain in compliance with all applicable third-party terms and conditions (e.g., advertising network or wireless carrier terms of service) applicable to its performance under this Agreement. Further, you warrant and represent that you (w) have obtained and will comply with all third party software licenses described in Section 5 above, (x) will comply with all content guidelines and instructions for the use of the Software and placement of Ad Tags, each as made available by AdMarvel from time to time, (y) shall promptly implement any and all updates to the Software that may be provided by AdMarvel from time to time, and (z) shall be solely responsible for any use of the account information provided to you by AdMarvel to access the AdMarvel Service. EXCEPT AS SET FORTH HEREIN, EACH PARTY DISCLAIMS ALL WARRANTIES WITH RESPECT TO ALL SERVICES, SOFTWARE, CONTENT AND TECHNOLOGY PROVIDED HEREUNDER, WHETHER SUCH WARRANTIES ARE EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ADMARVEL EXPRESSLY DISCLAIMS ANY WARRANTY (I) THAT THE ADMARVEL SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS; (II) THAT THE ADMARVEL SERVICES OR SOFTWARE WILL BE COMPATIBLE WITH CUSTOMER SERVICES; (III) THAT THE OPERATION OF THE ADMARVEL SERVICES OR SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ANY ERRORS WILL BE CORRECTED.
11. Each party acknowledges that by reason of its relationship to the other party under this Agreement it may have access to the nonpublic, confidential information of the other party ("Confidential Information"). AdMarvel Confidential Information includes (i) all software, technology, guidelines and documentation relating to the AdMarvel Services; (ii) campaign metrics and end user data (e.g., click-through rates, conversion rates, CPM rates, earnings, payments and/or targeting criteria), amounts paid or payable, and other statistics relating to the AdMarvel Services; and (iii) AdMarvel's methods for selecting and directing advertising to specific Ad Tags. Each party agrees to maintain in confidence and use only for the purposes of this Agreement all Confidential Information received from the other, both orally and in writing, provided that the parties' obligations of non-disclosure and limited use shall not apply to Confidential Information which the receiving party can demonstrate: (i) is or becomes a matter of public knowledge through no fault of the receiving party; (ii) was rightfully in the receiving party's possession prior to disclosure by the disclosing party; (iii) subsequent to disclosure, is rightfully obtained by the receiving party from a third party in lawful possession of such Confidential Information; (iv) is independently developed by the receiving party without reference to Confidential Information; or (v) is required to be disclosed by law. Upon termination of this Agreement, each party shall immediately cease using and return all property in its possession belonging to the other party and promptly return or destroy all tangible embodiments of Confidential Information
12. Indemnification.
a. By Each Party. Each party shall indemnify, defend and hold harmless the other party, its officers, directors, employees and agents (each, an "Indemnified Party") from and against any and all claims, actions, suits, demands, obligations, and proceedings of any kind threatened, asserted, or filed against any Indemnified Party by any third party (any or all of the foregoing, "Claims"), and any and all damages, costs, liabilities, judgments or expenses (including reasonable attorneys' fees and costs) incurred in connection with such Claims by any Indemnified Party directly arising from: (i) the indemnifying party's breach of any warranties or representations under this Agreement; (ii) with respect to AdMarvel as the indemnifying party, subject to Sections 12.b and 12.c, the indemnifying party's infringement or misappropriation of a third party's patent, copyright, trademark, or trade secret; or (iii) with respect to AdMarvel as the indemnifying party, subject to Sections 12.b and 12.c, any failure by the indemnifying party to secure any third party rights (including, without limitation, intellectual property rights, publicity or privacy rights) necessary for the fulfillment of its obligations to provide the AdMarvel Services under this Agreement. This indemnification obligation is contingent upon: (1) the Indemnified Party giving prompt written notice to the indemnifying party of any Claim; (2) the Indemnified Party allowing the indemnifying party to control the defense and related settlement negotiations, provided that no settlement shall be entered into without the written consent of the Indemnified Party; and (3) the Indemnified Party reasonably assisting in the defense as requested by the indemnifying party (at the indemnifying party's expense). An Indemnified Party may retain counsel at its own expense to assist in the defense of the Claim.
b. Alternative. Any Claim indemnified under 12.a(ii) and 12.a(iii) shall be referred to as an "IP Claim". In the event that the AdMarvel Service, or any portion thereof, is the subject of an IP Claim, AdMarvel may, in its sole discretion and at no expense to you and as full satisfaction of its obligations under 11.a above: (i) procure for you the right to continue to use the AdMarvel Service or Software, as applicable; (ii) replace the AdMarvel Service or Software (as applicable) with a substantially equivalent non-infringing substitute; (iii) modify the AdMarvel Service or Software (as applicable) so that it becomes non-infringing; or (iv) if AdMarvel, despite its diligent efforts, determines that the options as outlined in clauses (i) through (iii) immediately above are commercially impracticable or AdMarvel is unable to procure for you the right to continue to use the AdMarvel Service, then AdMarvel may terminate this Agreement.
c. Exclusions. AdMarvel will have no liability to you for any claim of infringement or misappropriation to the extent such claim is based upon: (i) use of the AdMarvel Service or Software not in accordance with this Agreement or any documentation or instructions provided by AdMarvel; (ii) any modification of the AdMarvel Service or Software by any person other than AdMarvel; and (iii) the combination of the AdMarvel Service or Software with products or services not supplied or authorized by AdMarvel. You will indemnify AdMarvel against all liability, damages and costs (including reasonable attorneys' fees) resulting from any such claims to the extent that you are directly or indirectly responsible for the use, modification or combination.
d. Exclusive Remedy. THIS SECTION 12 STATES EACH PARTY'S ENTIRE LIABILITY AND THE INDEMNIFIED PARTY'S SOLE AND EXCLUSIVE REMEDY FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OR PUBLICITY OR PRIVACY RIGHTS.
13. IN NO EVENT SHALL ADMARVEL'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE NET AMOUNT IT HAS RECEIVED AS SHARED REVENUE UNDER THIS AGREEMENT. ADMARVEL SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND LOSS OF GOODWILL, EVEN IF CUSTOMER IS ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE THAT THIS SECTION 13 REPRESENTS A REASONABLE ALLOCATION OF RISK AND EACH PARTY HAS RELIED ON THIS SECTION 13 IN ENTERING INTO THIS AGREEMENT.
14. This Agreement shall be effective from the Effective Date unless and until terminated by either party according to the terms of this Section 14. Either party may terminate this Agreement on 30 days written notice for any reason or no reason. The following provisions will survive the termination or expiration of this Agreement: (a) Sections 7 and 8 shall survive for 3 full calendar months following termination, after which only the payment obligations accrued prior to the termination and subsequent 3 month period shall survive; and Sections 6 and 9 through 16 shall survive termination indefinitely.
15. This Agreement shall be governed by and construed according to the laws of the state of California without regard to its rules concerning conflicts of laws, and will be adjudicated in the state courts located in San Mateo County California, or the United States District Court for the Northern District of California. The parties acknowledge and agree that any unauthorized disclosure or use of a party's confidential information or intellectual property would cause such party irreparable harm for which monetary damages would be inadequate. Accordingly, in the event of such a disclosure or use, the aggrieved party may seek injunctive or other equitable relief to enforce this Agreement in addition to any available legal remedies.
16. The parties are independent contractors, and no agency or similar relationship shall be created by this Agreement, and neither party will have any authority to assume, create, or enlarge any obligation or commitment on behalf of the other. You agree that you will not assign your rights or obligations under this Agreement without the prior written consent of AdMarvel; provided, however, that in the event that you are acquired by a third-party entity (whether as a result of an acquisition, sale of assets, merger, or otherwise), AdMarvel will not unreasonably withhold its consent to the assignment of the Agreement. Any provision of this Agreement adjudged to be illegal, invalid or unenforceable in any respect shall not affect any other provision, and the balance of the Agreement shall continue in full force and effect. This Agreement, including its exhibits, supersedes all other agreements and representations, express or implied, written or oral, between the parties with respect to the subject matter of this Agreement.
17. AdMarvel may change the terms of this Agreement upon thirty (30) days' written notice to you, which AdMarvel may deliver by email or by posting notice of the change in the AdMarvel publisher dashboard. If you continue to use the AdMarvel Service after the expiration of the thirty (30) day notice period, you shall be deemed to have accepted and are bound by the new terms. This Agreement shall not be otherwise changed or modified except in a writing signed by duly authorized personnel of each party.
Date: May 11, 2010
1. To become a user of the AdMarvel managed mobile advertising and analytics platform for SMS, MMS, WAP and In-App advertising (the platform and management are the "AdMarvel Service") operated by AdMarvel, Inc. ("AdMarvel"), all applicants must read and accept these Terms and Conditions for AdMarvel Service (the "Agreement") and submit an AdMarvel Service Publisher application, which must identify the legal entity entering this Agreement ("you") and the SMS and MMS services, WAP sites, and any application (collectively, "Publisher Services") with respect to which you desire to implement the AdMarvel Service. It is within AdMarvel's sole discretion to deny your application to become an AdMarvel publisher for any reason. After evaluating your application, AdMarvel will notify you of your acceptance or rejection. Only after your receipt of an email from AdMarvel accepting your application will the terms of this Agreement be binding on AdMarvel.
2. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND ADMARVEL. BY CHECKING THE "I AGREE" BOX ON THE ADMARVEL SITE AND SUBMITTING AN APPLICATION YOU ARE AGREEING THAT THE INDIVIDUAL COMPLETING THE APPLICATION AND CHECKING THE "I AGREE" BOX HAS THE AUTHORITY TO BIND YOU, THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THE AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION. YOU AND ADMARVEL MAY EACH BE REFERRED TO AS A "PARTY" IN THIS AGREEMENT, AND ARE, COLLECTIVELY, THE "PARTIES".
3. Commencing as of the date on which AdMarvel informs you that it has accepted your application, AdMarvel will make the AdMarvel Service available to you for use as set forth herein. Further, AdMarvel has developed an application programming interface and associated software libraries and documentation to implement calls to the AdMarvel Service in its publishers' WAP sites and MMS and SMS messages (the "API") and multiple software development kits to implement calls to the AdMarvel Service in it's publishers' mobile applications (each an "SDK", and together with the API, the "Software"), which AdMarvel will make available for your use, subject to the terms herein.
4. In order for AdMarvel to provide the AdMarvel Service to you, you hereby grant AdMarvel permission to: (a) obtain HTML, Javascript or similar codes for placement in Publisher Services in order to call and display advertising (such codes, regardless of the source or specific format are, "Ad Tags") from those advertising networks you may select with which AdMarvel has a master account; and (b) use user names, passwords and Ad Tags provided by you for advertising networks with which you have an account solely in the provision of the AdMarvel Service to you. You agree to follow AdMarvel's instructions, as communicated to you from time to time, with respect to your relationships with advertising networks and any Ad Tags. As between AdMarvel and you, each party's advertising network user names, passwords and Ad Tags are and shall remain their property.
5. Subject to the terms and conditions of this Agreement, AdMarvel grants to you a personal, nonsublicensable, nonexclusive, nontransferable, limited license to use the Software provided to you by AdMarvel for the sole purpose of implementing the AdMarvel Service in the Publisher Services in accordance with all documentation supplied by AdMarvel. To the extent that you acquire and use a SDK, you agree that you must obtain and comply with an appropriate development license from the supplier of the platform for which such SDK is targeted. AdMarvel may make third party software and documentation available to you for the mutual convenience of you and such third party. To the extent you download and use such third party software and documentation, you agree that its rights in such software and documentation are governed entirely by such license. You expressly agree that with respect to any Software you license from AdMarvel for use with any platform provided by QUALCOMM Incorporated ("Qualcomm"), Qualcomm (or AdMarvel acting at Qualcomm's direction) may at any time, in its sole discretion, permanently disable or suspend your ability to use such Software or your access to the AdMarvel Services through the use of such Software.
6. Except as may be expressly provided herein, neither you nor AdMarvel shall have or obtain any rights in or to any intellectual property of the other in connection with this Agreement. Without limiting the generality of the foregoing, you will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the AdMarvel Service or Software; modify, translate, or create derivative works based on the AdMarvel Service or Software except to the extent the expressly permitted uses of the AdMarvel Software under Section 5 above may be considered derivative works; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the AdMarvel Service or Software; except as expressly authorized hereunder, use the AdMarvel Service or Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. Both you and AdMarvel may identify the other as a partner on their respective website and in marketing and presentation materials during the term of this Agreement.
7. "Revenue" means the gross revenue actually received by AdMarvel attributable to advertising associated with the Publisher Service in any geographical region in which you utilize the AdMarvel Service during the term after deducting any taxes that AdMarvel is required to pay or collect in relation to the sale of such advertising, any payment processing fees, costs of sale, and costs associated with the delivery and maintenance of the Software and AdMarvel Service. "Net Revenue" means Revenue, less any fees paid to or deducted by a third party in connection with the placement of advertising, including without limitation, payments to Qualcomm, advertising agency or advertising network fees, costs associated with servicing business partner and advertiser accounts and costs related to creative services. You agree that AdMarvel will collect all Revenue for advertising served through the AdMarvel Service and will pay you the Net Revenue. You acknowledge and agree that Revenue and Net Revenue for any month may be subsequently restated if (a) a third party fails to pay amounts due as part of Revenue, or (b) a third party restates the amounts due and payable as part of Revenue.
8. Not later than 15 days following the end of each calendar month, AdMarvel will provide an accounting of the Revenue received during such calendar month, a computation of Net Revenue, any restatement of Revenue or Net Revenue, and the amount that AdMarvel computes to be due to you (or amounts due from you if a downward restatement of Revenue or Net Revenue results in such an outcome). Not later than 45 days following the end of each calendar month, AdMarvel shall pay you the Net Revenue due after offsetting any amount due from you. AdMarvel shall not have any obligation to make a payment until the cumulative amount due equals or exceeds $500; any amounts due that are less than $500 shall be accrued for payment in the next month in which the total accrued amount due is $500 or more. AdMarvel will pay you any Net Revenue due to you after the term to the extent such Net Revenue is attributable to your use of the AdMarvel Service during the term.
9. AdMarvel will maintain complete and accurate records as reasonably necessary to verify payments due under this Agreement for no fewer than two (2) years following the end of the term of this Agreement. During the term of this Agreement and for two (2) years thereafter, upon your request, AdMarvel will allow you (or a third-party auditor reasonably acceptable to AdMarvel) to inspect and audit AdMarvel's records regarding payments due under this Agreement. You will bear your own costs in connection with any audits; provided, however, that in the event that any audit under this Agreement reveals any underpayment to you, AdMarvel will promptly reimburse you for the amount of the underpayment, and if the underpayment is more than ten percent (10%) of the amounts that should have been paid, AdMarvel will promptly reimburse you for the costs reasonably incurred by you in connection with the audit.
10. Each party warrants and represents to the other party that (a) it has the power, right and authority to enter into this Agreement and to fulfill its obligations under this Agreement; (b) it is and will remain in compliance with all laws, rules, and regulations applicable to its performance under this Agreement; and (c) it is and will remain in compliance with all applicable third-party terms and conditions (e.g., advertising network or wireless carrier terms of service) applicable to its performance under this Agreement. Further, you warrant and represent that you (w) have obtained and will comply with all third party software licenses described in Section 5 above, (x) will comply with all content guidelines and instructions for the use of the Software and placement of Ad Tags, each as made available by AdMarvel and/or Qualcomm from time to time, (y) shall promptly implement any and all updates to the Software that may be provided by AdMarvel from time to time, and (z) shall be solely responsible for any use of the account information provided to you by AdMarvel to access the AdMarvel Service. EXCEPT AS SET FORTH HEREIN, EACH PARTY DISCLAIMS ALL WARRANTIES WITH RESPECT TO ALL SERVICES, SOFTWARE, CONTENT AND TECHNOLOGY PROVIDED HEREUNDER, WHETHER SUCH WARRANTIES ARE EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ADMARVEL EXPRESSLY DISCLAIMS ANY WARRANTY (I) THAT THE ADMARVEL SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS; (II) THAT THE ADMARVEL SERVICES OR SOFTWARE WILL BE COMPATIBLE WITH PUBLISHER SERVICES; (III) THAT THE OPERATION OF THE ADMARVEL SERVICES OR SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ANY ERRORS WILL BE CORRECTED.
11. Each party acknowledges that by reason of its relationship to the other party under this Agreement it may have access to the nonpublic, confidential information of the other party ("Confidential Information"). AdMarvel Confidential Information includes (i) all software, technology, guidelines and documentation relating to the AdMarvel Services; (ii) campaign metrics and end user data (e.g., click-through rates, conversion rates, CPM rates, earnings, payments and/or targeting criteria), amounts paid or payable, and other statistics relating to the AdMarvel Services; and (iii) AdMarvel's methods for selecting and directing advertising to specific Ad Tags. Each party agrees to maintain in confidence and use only for the purposes of this Agreement all Confidential Information received from the other, both orally and in writing, provided that the parties' obligations of non-disclosure and limited use shall not apply to Confidential Information which the receiving party can demonstrate: (i) is or becomes a matter of public knowledge through no fault of the receiving party; (ii) was rightfully in the receiving party's possession prior to disclosure by the disclosing party; (iii) subsequent to disclosure, is rightfully obtained by the receiving party from a third party in lawful possession of such Confidential Information; (iv) is independently developed by the receiving party without reference to Confidential Information; or (v) is required to be disclosed by law. Upon termination of this Agreement, each party shall immediately cease using and return all property in its possession belonging to the other party and promptly return or destroy all tangible embodiments of Confidential Information
12. Indemnification.
a. By Each Party. Each party shall indemnify, defend and hold harmless the other party, its officers, directors, employees and agents (each, an "Indemnified Party") from and against any and all claims, actions, suits, demands, obligations, and proceedings of any kind threatened, asserted, or filed against any Indemnified Party by any third party (any or all of the foregoing, "Claims"), and any and all damages, costs, liabilities, judgments or expenses (including reasonable attorneys' fees and costs) incurred in connection with such Claims by any Indemnified Party directly arising from: (i) the indemnifying party's breach of any warranties or representations under this Agreement; (ii) with respect to AdMarvel as the indemnifying party, subject to Sections 12.b and 12.c, the indemnifying party's infringement or misappropriation of a third party's patent, copyright, trademark, or trade secret; or (iii) with respect to AdMarvel as the indemnifying party, subject to Sections 12.b and 12.c, any failure by the indemnifying party to secure any third party rights (including, without limitation, intellectual property rights, publicity or privacy rights) necessary for the fulfillment of its obligations to provide the AdMarvel Services under this Agreement. This indemnification obligation is contingent upon: (1) the Indemnified Party giving prompt written notice to the indemnifying party of any Claim; (2) the Indemnified Party allowing the indemnifying party to control the defense and related settlement negotiations, provided that no settlement shall be entered into without the written consent of the Indemnified Party; and (3) the Indemnified Party reasonably assisting in the defense as requested by the indemnifying party (at the indemnifying party's expense). An Indemnified Party may retain counsel at its own expense to assist in the defense of the Claim.
b. Alternative. Any Claim indemnified under 12.a(ii) and 12.a(iii) shall be referred to as an "IP Claim". In the event that the AdMarvel Service, or any portion thereof, is the subject of an IP Claim, AdMarvel may, in its sole discretion and at no expense to you and as full satisfaction of its obligations under 11.a above: (i) procure for you the right to continue to use the AdMarvel Service or Software, as applicable; (ii) replace the AdMarvel Service or Software (as applicable) with a substantially equivalent non-infringing substitute; (iii) modify the AdMarvel Service or Software (as applicable) so that it becomes non-infringing; or (iv) if AdMarvel, despite its diligent efforts, determines that the options as outlined in clauses (i) through (iii) immediately above are commercially impracticable or AdMarvel is unable to procure for you the right to continue to use the AdMarvel Service, then AdMarvel may terminate this Agreement.
c. Exclusions. AdMarvel will have no liability to you for any claim of infringement or misappropriation to the extent such claim is based upon: (i) use of the AdMarvel Service or Software not in accordance with this Agreement or any documentation or instructions provided by AdMarvel; (ii) any modification of the AdMarvel Service or Software by any person other than AdMarvel; and (iii) the combination of the AdMarvel Service or Software with products or services not supplied or authorized by AdMarvel. You will indemnify AdMarvel against all liability, damages and costs (including reasonable attorneys' fees) resulting from any such claims to the extent that you are directly or indirectly responsible for the use, modification or combination.
d. Exclusive Remedy. THIS SECTION 12 STATES EACH PARTY'S ENTIRE LIABILITY AND THE INDEMNIFIED PARTY'S SOLE AND EXCLUSIVE REMEDY FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OR PUBLICITY OR PRIVACY RIGHTS.
13. IN NO EVENT SHALL ADMARVEL'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE NET AMOUNT IT HAS RECEIVED AS SHARED REVENUE UNDER THIS AGREEMENT. ADMARVEL SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND LOSS OF GOODWILL, EVEN IF YOU ARE ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE THAT THIS SECTION 13 REPRESENTS A REASONABLE ALLOCATION OF RISK AND EACH PARTY HAS RELIED ON THIS SECTION 13 IN ENTERING INTO THIS AGREEMENT.
14. This Agreement shall be effective from the Effective Date unless and until terminated by either party according to the terms of this Section 14. Either party may terminate this Agreement on 30 days written notice for any reason or no reason. The following provisions will survive the termination or expiration of this Agreement: (a) Sections 7 and 8 shall survive for 3 full calendar months following termination, after which only the payment obligations accrued prior to the termination and subsequent 3 month period shall survive; and Sections 6 and 9 through 16 shall survive termination indefinitely.
15. This Agreement shall be governed by and construed according to the laws of the state of California without regard to its rules concerning conflicts of laws, and will be adjudicated in the state courts located in San Mateo County California, or the United States District Court for the Northern District of California. The parties acknowledge and agree that any unauthorized disclosure or use of a party's confidential information or intellectual property would cause such party irreparable harm for which monetary damages would be inadequate. Accordingly, in the event of such a disclosure or use, the aggrieved party may seek injunctive or other equitable relief to enforce this Agreement in addition to any available legal remedies.
16. The parties are independent contractors, and no agency or similar relationship shall be created by this Agreement, and neither party will have any authority to assume, create, or enlarge any obligation or commitment on behalf of the other. You agree that you will not assign your rights or obligations under this Agreement without the prior written consent of AdMarvel; provided, however, that in the event that you are acquired by a third-party entity (whether as a result of an acquisition, sale of assets, merger, or otherwise), AdMarvel will not unreasonably withhold its consent to the assignment of the Agreement. Any provision of this Agreement adjudged to be illegal, invalid or unenforceable in any respect shall not affect any other provision, and the balance of the Agreement shall continue in full force and effect. This Agreement, including its exhibits, supersedes all other agreements and representations, express or implied, written or oral, between the parties with respect to the subject matter of this Agreement.
17. AdMarvel may change the terms of this Agreement upon thirty (30) days' written notice to you, which AdMarvel may deliver by email or by posting notice of the change in the AdMarvel publisher dashboard. If you continue to use the AdMarvel Service after the expiration of the thirty (30) day notice period, you shall be deemed to have accepted and are bound by the new terms. This Agreement shall not be otherwise changed or modified except in a writing signed by duly authorized personnel of each party.
Date: June 29, 2010
1. To become a user of the AdMarvel managed mobile advertising and analytics platform for SMS, MMS, WAP and In-App advertising (the platform and management are the "AdMarvel Service") operated by AdMarvel, Inc. ("AdMarvel"), all applicants must read and accept these Terms and Conditions for AdMarvel Service (the "Agreement") and submit an AdMarvel Service Publisher application, which must identify the legal entity entering this Agreement ("you") and the SMS and MMS services, WAP sites, and any application (collectively, "Publisher Services") with respect to which you desire to implement the AdMarvel Service. It is within AdMarvel's sole discretion to deny your application to become an AdMarvel publisher for any reason. After evaluating your application, AdMarvel will notify you of your acceptance or rejection. Only after your receipt of an email from AdMarvel accepting your application will the terms of this Agreement be binding on AdMarvel.
2. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND ADMARVEL. BY CHECKING THE "I AGREE" BOX ON THE ADMARVEL SITE AND SUBMITTING AN APPLICATION YOU ARE AGREEING THAT THE INDIVIDUAL COMPLETING THE APPLICATION AND CHECKING THE "I AGREE" BOX HAS THE AUTHORITY TO BIND YOU, THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THE AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION. YOU AND ADMARVEL MAY EACH BE REFERRED TO AS A "PARTY" IN THIS AGREEMENT, AND ARE, COLLECTIVELY, THE "PARTIES".
3. Commencing as of the date on which AdMarvel informs you that it has accepted your application, AdMarvel will make the AdMarvel Service available to you for use as set forth herein. Further, AdMarvel has developed an application programming interface and associated software libraries and documentation to implement calls to the AdMarvel Service in its publishers' WAP sites and MMS and SMS messages (the "API") and multiple software development kits to implement calls to the AdMarvel Service in it's publishers' mobile applications (each an "SDK", and together with the API, the "Software"), which AdMarvel will make available for your use, subject to the terms herein.
4. In order for AdMarvel to provide the AdMarvel Service to you, you hereby grant AdMarvel permission to: (a) obtain HTML, Javascript or similar codes for placement in Publisher Services in order to call and display advertising (such codes, regardless of the source or specific format are, "Ad Tags") from those advertising networks you may select with which AdMarvel has a master account; and (b) use user names, passwords and Ad Tags provided by you for advertising networks with which you have an account solely in the provision of the AdMarvel Service to you. You agree to follow AdMarvel's instructions, as communicated to you from time to time, with respect to your relationships with advertising networks and any Ad Tags. As between AdMarvel and you, each party's advertising network user names, passwords and Ad Tags are and shall remain their property.
5. Subject to the terms and conditions of this Agreement, AdMarvel grants to you a personal, nonsublicensable, nonexclusive, nontransferable, limited license to use the Software provided to you by AdMarvel for the sole purpose of implementing the AdMarvel Service in the Publisher Services in accordance with all documentation supplied by AdMarvel. To the extent that you acquire and use a SDK, you agree that you must obtain and comply with an appropriate development license from the supplier of the platform for which such SDK is targeted. AdMarvel may make third party software and documentation available to you for the mutual convenience of you and such third party. To the extent you download and use such third party software and documentation, you agree that its rights in such software and documentation are governed entirely by such license. You expressly agree that with respect to any Software you license from AdMarvel for use with any platform, AdMarvel may at any time, in its sole discretion, permanently disable or suspend your ability to use such Software or your access to the AdMarvel Services through the use of such Software.
6. Except as may be expressly provided herein, neither you nor AdMarvel shall have or obtain any rights in or to any intellectual property of the other in connection with this Agreement. Without limiting the generality of the foregoing, you will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the AdMarvel Service or Software; modify, translate, or create derivative works based on the AdMarvel Service or Software except to the extent the expressly permitted uses of the AdMarvel Software under Section 5 above may be considered derivative works; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the AdMarvel Service or Software; except as expressly authorized hereunder, use the AdMarvel Service or Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. Both you and AdMarvel may identify the other as a partner on their respective website and in marketing and presentation materials during the term of this Agreement.
7. "Revenue" means the gross revenue actually received by AdMarvel attributable to advertising associated with the Publisher Service in any geographical region in which you utilize the AdMarvel Service during the term after deducting any taxes that AdMarvel is required to pay or collect in relation to the sale of such advertising, any payment processing fees, costs of sale, and costs associated with the delivery and maintenance of the Software and AdMarvel Service. "Net Revenue" means Revenue, less any fees paid to or deducted by a third party in connection with the placement of advertising, including without limitation, payments to advertising agencies or advertising network fees, costs associated with servicing business partner and advertiser accounts and costs related to creative services. You agree that AdMarvel will collect all Revenue for advertising served through the AdMarvel Service and will pay you the Net Revenue. You acknowledge and agree that Revenue and Net Revenue for any month may be subsequently restated if (a) a third party fails to pay amounts due as part of Revenue, or (b) a third party restates the amounts due and payable as part of Revenue.
8. Not later than 15 days following the end of each calendar month, AdMarvel will provide an accounting of the Revenue received during such calendar month, a computation of Net Revenue, any restatement of Revenue or Net Revenue, and the amount that AdMarvel computes to be due to you (or amounts due from you if a downward restatement of Revenue or Net Revenue results in such an outcome). Not later than 45 days following the end of each calendar month, AdMarvel shall pay you the Net Revenue due after offsetting any amount due from you. AdMarvel shall not have any obligation to make a payment until the cumulative amount due equals or exceeds $500; any amounts due that are less than $500 shall be accrued for payment in the next month in which the total accrued amount due is $500 or more. AdMarvel will pay you any Net Revenue due to you after the term to the extent such Net Revenue is attributable to your use of the AdMarvel Service during the term.
9. AdMarvel will maintain complete and accurate records as reasonably necessary to verify payments due under this Agreement for no fewer than two (2) years following the end of the term of this Agreement. During the term of this Agreement and for two (2) years thereafter, upon your request, AdMarvel will allow you (or a third-party auditor reasonably acceptable to AdMarvel) to inspect and audit AdMarvel's records regarding payments due under this Agreement. You will bear your own costs in connection with any audits; provided, however, that in the event that any audit under this Agreement reveals any underpayment to you, AdMarvel will promptly reimburse you for the amount of the underpayment, and if the underpayment is more than ten percent (10%) of the amounts that should have been paid, AdMarvel will promptly reimburse you for the costs reasonably incurred by you in connection with the audit.
10. Each party warrants and represents to the other party that (a) it has the power, right and authority to enter into this Agreement and to fulfill its obligations under this Agreement; (b) it is and will remain in compliance with all laws, rules, and regulations applicable to its performance under this Agreement; and (c) it is and will remain in compliance with all applicable third-party terms and conditions (e.g., advertising network or wireless carrier terms of service) applicable to its performance under this Agreement. Further, you warrant and represent that you (w) have obtained and will comply with all third party software licenses described in Section 5 above, (x) will comply with all content guidelines and instructions for the use of the Software and placement of Ad Tags, each as made available by AdMarvel from time to time, (y) shall promptly implement any and all updates to the Software that may be provided by AdMarvel from time to time, and (z) shall be solely responsible for any use of the account information provided to you by AdMarvel to access the AdMarvel Service. EXCEPT AS SET FORTH HEREIN, EACH PARTY DISCLAIMS ALL WARRANTIES WITH RESPECT TO ALL SERVICES, SOFTWARE, CONTENT AND TECHNOLOGY PROVIDED HEREUNDER, WHETHER SUCH WARRANTIES ARE EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ADMARVEL EXPRESSLY DISCLAIMS ANY WARRANTY (I) THAT THE ADMARVEL SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS; (II) THAT THE ADMARVEL SERVICES OR SOFTWARE WILL BE COMPATIBLE WITH PUBLISHER SERVICES; (III) THAT THE OPERATION OF THE ADMARVEL SERVICES OR SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ANY ERRORS WILL BE CORRECTED.
11. Each party acknowledges that by reason of its relationship to the other party under this Agreement it may have access to the nonpublic, confidential information of the other party ("Confidential Information"). AdMarvel Confidential Information includes (i) all software, technology, guidelines and documentation relating to the AdMarvel Services; (ii) campaign metrics and end user data (e.g., click-through rates, conversion rates, CPM rates, earnings, payments and/or targeting criteria), amounts paid or payable, and other statistics relating to the AdMarvel Services; and (iii) AdMarvel's methods for selecting and directing advertising to specific Ad Tags. Each party agrees to maintain in confidence and use only for the purposes of this Agreement all Confidential Information received from the other, both orally and in writing, provided that the parties' obligations of non-disclosure and limited use shall not apply to Confidential Information which the receiving party can demonstrate: (i) is or becomes a matter of public knowledge through no fault of the receiving party; (ii) was rightfully in the receiving party's possession prior to disclosure by the disclosing party; (iii) subsequent to disclosure, is rightfully obtained by the receiving party from a third party in lawful possession of such Confidential Information; (iv) is independently developed by the receiving party without reference to Confidential Information; or (v) is required to be disclosed by law. Upon termination of this Agreement, each party shall immediately cease using and return all property in its possession belonging to the other party and promptly return or destroy all tangible embodiments of Confidential Information
12. Indemnification.
a. By Each Party. Each party shall indemnify, defend and hold harmless the other party, its officers, directors, employees and agents (each, an "Indemnified Party") from and against any and all claims, actions, suits, demands, obligations, and proceedings of any kind threatened, asserted, or filed against any Indemnified Party by any third party (any or all of the foregoing, "Claims"), and any and all damages, costs, liabilities, judgments or expenses (including reasonable attorneys' fees and costs) incurred in connection with such Claims by any Indemnified Party directly arising from: (i) the indemnifying party's breach of any warranties or representations under this Agreement; (ii) with respect to AdMarvel as the indemnifying party, subject to Sections 12.b and 12.c, the indemnifying party's infringement or misappropriation of a third party's patent, copyright, trademark, or trade secret; or (iii) with respect to AdMarvel as the indemnifying party, subject to Sections 12.b and 12.c, any failure by the indemnifying party to secure any third party rights (including, without limitation, intellectual property rights, publicity or privacy rights) necessary for the fulfillment of its obligations to provide the AdMarvel Services under this Agreement. This indemnification obligation is contingent upon: (1) the Indemnified Party giving prompt written notice to the indemnifying party of any Claim; (2) the Indemnified Party allowing the indemnifying party to control the defense and related settlement negotiations, provided that no settlement shall be entered into without the written consent of the Indemnified Party; and (3) the Indemnified Party reasonably assisting in the defense as requested by the indemnifying party (at the indemnifying party's expense). An Indemnified Party may retain counsel at its own expense to assist in the defense of the Claim.
b. Alternative. Any Claim indemnified under 12.a(ii) and 12.a(iii) shall be referred to as an "IP Claim". In the event that the AdMarvel Service, or any portion thereof, is the subject of an IP Claim, AdMarvel may, in its sole discretion and at no expense to you and as full satisfaction of its obligations under 11.a above: (i) procure for you the right to continue to use the AdMarvel Service or Software, as applicable; (ii) replace the AdMarvel Service or Software (as applicable) with a substantially equivalent non-infringing substitute; (iii) modify the AdMarvel Service or Software (as applicable) so that it becomes non-infringing; or (iv) if AdMarvel, despite its diligent efforts, determines that the options as outlined in clauses (i) through (iii) immediately above are commercially impracticable or AdMarvel is unable to procure for you the right to continue to use the AdMarvel Service, then AdMarvel may terminate this Agreement.
c. Exclusions. AdMarvel will have no liability to you for any claim of infringement or misappropriation to the extent such claim is based upon: (i) use of the AdMarvel Service or Software not in accordance with this Agreement or any documentation or instructions provided by AdMarvel; (ii) any modification of the AdMarvel Service or Software by any person other than AdMarvel; and (iii) the combination of the AdMarvel Service or Software with products or services not supplied or authorized by AdMarvel. You will indemnify AdMarvel against all liability, damages and costs (including reasonable attorneys' fees) resulting from any such claims to the extent that you are directly or indirectly responsible for the use, modification or combination.
d. Exclusive Remedy. THIS SECTION 12 STATES EACH PARTY'S ENTIRE LIABILITY AND THE INDEMNIFIED PARTY'S SOLE AND EXCLUSIVE REMEDY FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OR PUBLICITY OR PRIVACY RIGHTS.
13. IN NO EVENT SHALL ADMARVEL'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE NET AMOUNT IT HAS RECEIVED AS SHARED REVENUE UNDER THIS AGREEMENT. ADMARVEL SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND LOSS OF GOODWILL, EVEN IF YOU ARE ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE THAT THIS SECTION 13 REPRESENTS A REASONABLE ALLOCATION OF RISK AND EACH PARTY HAS RELIED ON THIS SECTION 13 IN ENTERING INTO THIS AGREEMENT.
14. This Agreement shall be effective from the Effective Date unless and until terminated by either party according to the terms of this Section 14. Either party may terminate this Agreement on 30 days written notice for any reason or no reason. The following provisions will survive the termination or expiration of this Agreement: (a) Sections 7 and 8 shall survive for 3 full calendar months following termination, after which only the payment obligations accrued prior to the termination and subsequent 3 month period shall survive; and Sections 6 and 9 through 16 shall survive termination indefinitely.
15. This Agreement shall be governed by and construed according to the laws of the state of California without regard to its rules concerning conflicts of laws, and will be adjudicated in the state courts located in San Mateo County California, or the United States District Court for the Northern District of California. The parties acknowledge and agree that any unauthorized disclosure or use of a party's confidential information or intellectual property would cause such party irreparable harm for which monetary damages would be inadequate. Accordingly, in the event of such a disclosure or use, the aggrieved party may seek injunctive or other equitable relief to enforce this Agreement in addition to any available legal remedies.
16. The parties are independent contractors, and no agency or similar relationship shall be created by this Agreement, and neither party will have any authority to assume, create, or enlarge any obligation or commitment on behalf of the other. You agree that you will not assign your rights or obligations under this Agreement without the prior written consent of AdMarvel; provided, however, that in the event that you are acquired by a third-party entity (whether as a result of an acquisition, sale of assets, merger, or otherwise), AdMarvel will not unreasonably withhold its consent to the assignment of the Agreement. Any provision of this Agreement adjudged to be illegal, invalid or unenforceable in any respect shall not affect any other provision, and the balance of the Agreement shall continue in full force and effect. This Agreement, including its exhibits, supersedes all other agreements and representations, express or implied, written or oral, between the parties with respect to the subject matter of this Agreement.
17. AdMarvel may change the terms of this Agreement upon thirty (30) days' written notice to you, which AdMarvel may deliver by email or by posting notice of the change in the AdMarvel publisher dashboard. If you continue to use the AdMarvel Service after the expiration of the thirty (30) day notice period, you shall be deemed to have accepted and are bound by the new terms. This Agreement shall not be otherwise changed or modified except in a writing signed by duly authorized personnel of each party.
Date: June 29, 2010
