VMAX
 
 
 
 

VMAX AGREEMENT

THIS VMAX AGREEMENT (“Agreement”) is made as of date on which is by and between User (“you”) and Vserv Digital Services Private Limited (“VDSPL”) and sets down the terms and conditions under which you may avail of VDSPL Services. To become a user of the VDSPL Services, you must read and accept these terms and conditions for VDSPL Services and submit an application which must identify the legal entity entering into this Agreement and the specific needs for which you desire to implement the VDSPL Services. By submitting your application you are agreeing that you accept these terms and conditions. Any parties that you may resell to, for use of VDSPL Services are your responsibility and are bound by these terms.

It is within VDSPL’s sole discretion to deny your application to become a VDSPL user for any reason. After evaluating your application, VDSPL will notify you of our acceptance or rejection thereof. VDSPL’s acceptance is expressly conditional upon your assent to the terms of this Agreement, to the exclusion of all other terms.

Definitions

“Account” means an account that App Publisher has with VDSPL, which entitles VDSPL and/or its customers to purchase Ad Inventory and App Publisher gets the option to view all reports from other integrated Networks with which App Publisher has “App Publisher Account”.

“Ad Partner” means an Ad Partner not operated by VDSPL.

“Affiliate” means, with respect to a Party, an entity that directly or indirectly controls, is controlled by or is under common control with such Party.

“Client” means an advertiser, App Publisher, network or other third party, if any, on whose behalf VDSPL utilizes a Service.

“Buyer” means an advertiser, agency, network or other party that buys or attempts to purchase Ad Inventory through a Service.

“App Publisher Account” means an account that App Publisher has with the Ad Partner, which entitles App Publisher to monetise Ad Inventory through that Ad Partner.

“Exchange” means an advertising exchange or other biddable source of Ad Inventory.

“Inventory” means digital advertising inventory, including, without limitation, web, mobile, application and/or widget-based advertising inventory; that an application may equate to Ad Inventory hereunder only if such application (i) provides the user with clear notice about all material functionality, (ii) obtains informed consent from the user prior to download, (iii) provides an easy-to-use uninstall to the user and (iv) allows the user to maintain control over his or her computing environment.

“Service(s)” means service offered by VDSPL through its VMAX platform.

“Service Policies” means, collectively, all applicable written rules, terms, conditions, requirements, technical standards and policies of VDSPL, Sellers, Ad Partners and other third parties that are set forth in the VDSPL user interface.

“Sites” means the digital platforms on which a Service(s) is used or maintained (i.e., web and mobile sites, video players, and applications that (i) provide users with clear and appropriate notice about all material functions, (ii) obtain informed consent from users prior to download, (iii) provide users a reasonable uninstall process and (iv) allow users to maintain control over their computer and related functions).

“Seller” means an App Publisher, network or other party that sells or attempts to sell Ad Inventory through a Service.

“VMAX” is a tool provided by VDSPL to App Publishers that enables monetization across all Ad Partners and provides analytical reports.

“Unit” means a unit of advertising content.

Terms of Agreement

This Agreement shall come into force on the effective date and remain in force until terminated under these provisions.

Accepting the Terms and Conditions

In order to use the Services, you must first agree to the Terms and Conditions. You may not use the Services if you do not accept the Terms.

You can accept the Terms and Conditions by:

(A) clicking to accept or agree to the Terms and Conditions, where this option is made available to you by VDSPL in the user interface for any Service; or

(B) by actually using the Services. In this case, you understand and agree that VDSPL will treat your use of the Services as acceptance of the Terms from that point onwards.

You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with VDSPL, or (b) you are a person barred from receiving the Services under the laws of India or other countries including the country in which you are resident or from which you use the Services.

Before you continue, you should print off or save a local copy of the Universal Terms for your records.

VMAX integration

VDSPL will provide VMAX as a tool whereby the App Publisher will have an option to get its applications integrated on VMAX through the App Publisher account with the Ad Partner. VMAX will provide a unified dashboard for accessing reports across all such Ad Partners.

App Publisher has a separate agreement and account with such Ad Partner to facilitate integration with VMAX.

App Publisher warrants that it has necessary permission to have reporting from Ad Partner on VMAX.

App Publisher will facilitate Ad Partner integration on VMAX and follow Service policies of respective Ad Partner.

It is expressly understood by the Parties that VDSPL shall not have any interest, rights, liens, claims or obligations arising from monetization through such Ad Partners.

App Publisher will get revenue from Ad Partner according to the Agreement entered between App Publisher and Ad Partner. App Publisher will get consideration earned from Ad Partner directly from them and VDSPL has no liability towards such consideration payable by such Ad Partner to App Publisher.

VDSPL’s representations & warranties:

VDSPL shall comply at all times with the laws applicable in India in the performance with its obligations herein. VDSPL shall prevent advertisements that contain objectionable content on any of the App Publisher Properties. VDSPL shall ensure that advertisements on any of the App Publisher Properties shall not contain any content, products or services (i) engaging in any form of adware, stealthware, spyware, parasiteware or other similar advertising methods; (ii) that encourage users to click on the advertising by means of incentives (whether financial or otherwise), which App Publisher considers to be inappropriate or misleading in any way (and notified as such in writing to VDSPL); VDSPL doesn’t take responsibility of units delivered through Ad Partner on App Publisher’s property.

Termination:

Either Party may terminate this Agreement without cause on thirty (30) days prior written notice to the other Party.

After termination of the agreement, services offered through VMAX also stand terminated. Upon termination of this Agreement, your right to use the Services will immediately cease.

All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, confidentiality and limitations of liability.

Intellectual Property Rights:

App Publisher will retain all right, title and interest in and to its, or its licensees, copyright and other intellectual property rights relating to the App Publisher’s Properties (“IPR”).

VDSPL will retain all right, title and interest in and to its IPR provided such IPR is not created or generated for App Publisher and/or by using App Publisher’s IPR. VDSPL doesn’t grant any right to App Publisher to sub-license its IPR to parties outside this agreement.

App Publisher grants to VDSPL, during the Term, a non-exclusive, non-sub-licensable, royalty-free, world-wide licence to use, reproduce and display App Publisher logo and App Publisher branding (“App PublisherMarks”) in the form provided by App Publisher solely for the purposes of marketing the Ads., which means the logo’s can be used for the purpose of presentations, Reports, Case studies, brochures and mailers only.

Upon the expiration or termination of this Agreement, each Party will cease using the IPR of the other.

Warranties:

Each Party to this Agreement represents and warrants to the other that it has, and will retain throughout the Term, all right, title and authority to enter into, and perform all of its obligations pursuant to, this Agreement.

VDSPL warrants that it complies with, and shall continue to comply with, all applicable India laws and regulations applicable to VDSPL’s performances under this Agreement.

App Publisher warrants that (a) it complies with, and shall continue to comply with, all applicable Indian laws and regulations applicable to its performances under this Agreement; (b) App Publisher’s Properties shall not infringe any IPR or other third party rights enforceable anywhere in the world, or be in any way contrary to the law applicable to India; (c)The App Publisher’s Properties is/are either owned by the App Publisher or the App Publisher has all the adequate and appropriate rights and permissions to host such App Publisher’s Properties and allow the placement of Advertisements on the App Publisher’s Properties and shall keep all such rights and permissions valid and subsisting throughout the Term; (d) Any hardware and/or software contained or associated with the App Publisher’s Properties does not and will not infringe any third party IPRs or violate any applicable law in India or anywhere in the world.

Indemnities:

You will indemnify and hold VDSPL, its parents, subsidiaries, affiliates, directors, officers, employees, Publishers, Advertisers and other Users (“VDSPL Indemnified Parties”) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of your access to the Site, use of the Services, the violation of this Agreement by you or the infringement by you, or any third party using the your account, of any intellectual property or other right of any person or entity. The provisions of this paragraph shall survive the termination of this Agreement.

Market Pricing Confidentiality:

All pricing information is confidential and App Publisher may not share pricing information with any other party besides VDSPL, except as expressly directed by VDSPL. VDSPL reserves the right to terminate all Marketplace participation if there is a breach of this confidentiality.

The highest bid may not always win an auction, such as when a Buyer, Client, App Publisher or VDSPL specifies requirements on bidding terms, or specifies exclusions regarding who may buy its inventory.  The VDSPL Marketplace allows for transactions in real time, and bids and offers may compete simultaneously against multiple other bids and offers.

Force Majeure

VDSPL shall not be held liable or responsible to you nor be deemed to have defaulted under or have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by or results from causes beyond the reasonable control of VDSPL or from a Force Majeure event. “Force Majeure Event” means any event due to any cause beyond the reasonable control of the Parties, including, without limitation, unavailability of any communication system, breach or virus, sabotage, fire, flood, explosion, acts of God, civil commotion, strikes or industrial action of any kind, riots, insurrection, war, acts of government, computer hacking unauthorized access to computer data and storage devices, computer crashes, etc.

Limitation of Liability:

VDSPL SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, INCLUDING FOR LOSS OF DATA, LOSS OF PROFITS, BASED UPON A CLAIM OF ANY TYPE OR NATURE (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, INCLUDING NEGLIGENCE, WARRANTY OR STRICT LIABILITY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Confidentiality

Each of the Parties shall keep confidential and shall not make any unauthorised discloses to any person any information, whether in written or any other form, disclosed to it (“receiving party”) by or on behalf of the other Party (“disclosing party”) in the course of the discussions leading up to or the entering into or performance of this Agreement and which is identified as confidential or is clearly by its nature confidential including, the terms of this Agreement. Any confidentiality clauses in the agreement between App Publisher and Third-Party Ad Exchange is the responsibility of App Publisher and any breach of such confidentiality clause either by the App Publisher or Third-Party Ad Exchange will have no impact on the agreement with VDSPL and App Publisher. VDSPL will not be liable for the breach of confidentiality clauses as agreed between App Publisher and Third-Party Ad Exchange.

Entire Agreement:

This Agreement contains the entire agreement between the Parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the Parties in relation to such matters.

Relationship between Parties

You and VDSPL are independent contractors and nothing in this Agreement shall make us joint venturers, partners, employees, agents or other representatives of the other hereto. You shall not make any representation that suggests otherwise.

Public Relation Release

You and VDSPL shall issue a mutual public relation release to their cooperation and the availability of the Services and Content. Each party may issue its own public relation release, upon its sole discretion, in order to promote the cooperation and the Content; furthermore, each party may use the other Parties names in its publications.

Severability

If any provision of this Agreement is determined to be unenforceable for any reason, then the remaining provisions hereof shall remain unaffected and in full force and effect.

Variations of Agreement

VDSPL reserves the right at all times to vary or amend these terms and conditions or to introduce new terms and conditions. Any such variations or amendment or introduction will become effective and binding on you upon notification to you.

Assignment

This Agreement may not be assigned by you without the prior written consent of VDSPL. VDSPL may assign all its rights, titles, benefits under this Agreement to any of its affiliates. This Agreement shall apply to and bind any successor or permitted assigns of the Parties hereto.

Rights and Remedies; Waiver

All rights and remedies hereunder shall be cumulative and may be exercised singularly or concurrently. If any legal action is brought against you by VDSPL, to enforce any obligations hereunder, VDSPL shall be entitled to receive its attorney’s, fees, court costs and other collection expenses, in addition to any other relief it may receive. Failure of VDSPL to require strict performance of any provision shall not affect VDSPL’s right to require strict performance thereafter. Waiver by VDSPL of a breach of any provision shall not waive either the provision itself or any subsequent breach and shall not prevent enforcement on later occasions.

Survival of Provisions

Notwithstanding any other provision to the contrary herein, terms which by their nature survive termination or expiration of this Agreement shall bind you and VDSPL following any expiration or termination of this Agreement.

Notices

Any notice, direction or instruction given under this Agreement shall be in writing and delivered by hand, post, facsimile or email to VDSPL at its registered office and to you at the address notified by you/ used by you for communications with VDSPL.

1. Notice will be deemed given:

a. in the case of hand delivery or registered mail or overnight courier upon written acknowledgement of receipt by an officer or other duly authorized employee, agent or representative of the receiving party;

b. in the case of facsimile upon completion of transmission as long as the sender’s facsimile machine creates and the sender retains a transmission report showing successful transmission. Provided that in case of the date of receipt not being a business day, notice shall be deemed to have been received on the next business day. Provided further that in case of a notice being forwarded by facsimile, a copy of the notice shall also be forwarded by hand delivery, registered mail or overnight courier services.

2. The address for notice may be changed by you or VDSPL by giving notice to the other party as provided herein.

3. Nothing in the aforesaid clauses shall affect any communication given by way of the internet or other electronic medium as otherwise provided in this Agreement for the purpose of rendering the services.

Governing Law

The laws of India only and no other nation shall govern this Agreement. The Parties agree to submit to the exclusive jurisdiction of the Courts located in Mumbai, India as regards any claims or matters arising under or in relation to these terms and conditions.