Terms of service

Effective as of 9th November, 2021

This Terms of Service (“Agreement”) between you, a mobile application developer (“you”, “your” or “Publisher”), and Eurocore B.V. (“we”, “us”, “our” or “HyperBid”) constitutes the binding terms and conditions for your use of the HyperBid Programmatic Mediation Platform (“Platform”) and related mediation service (collectively, “Services”). We and Publisher are sometimes referred to in this Agreement as a “Party” and collectively the “Parties”.

BY CLICKING “ACCEPT” “SIGN UP” “LOG IN” (OR ANY SIMILAR LANGUAGE), AND/OR BY ACCESSING AND/OR USING THE SERVICES, YOU ACCEPT TO BE BOUND BY THIS AGREEMENT AND AGREE THAT FROM SUCH POINT ONWARDS YOU SHALL BE TREATED FOR ALL INTENTS AND PURPOSES BY US AS A PUBLISHER. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICES. IN ADDITION, YOU CONSENT TO THE USE OF ELECTRONIC MEANS AND/OR RECORDS TO PRESERVE YOUR ACCEPTANCE OF THIS AGREEMENT AND STORING INFORMATION RELATED TO THIS AGREEMENT AND YOUR USE OF THE SERVICES. YOU ALSO AGREE THAT WE MAY PROVIDE YOU WITH NOTICES IN ACCORDANCE WITH THIS AGREEMENT.

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1. Scope of the Services.

As a Publisher, you are entitled to offer and sell spaces or elements of mobile applications (“Apps”) that you designate for placement of ads (“Inventory”) to any third-party ad networks, merchants, retailers, service providers, content providers, affiliates, agents and/or advertisers (collectively “Advertisers”) via the Services. Advertisers may display and serve their advertisements (“Ads”) on Inventory made available via your Apps, and pays Advertising Fees to you as consideration.

2. Your Use of the Services.

• 2.1 You will be assigned a username and password with which you shall be able to access the Publisher Account. You agree hereunder: (a) to keep your password secure and confidential; (b) not to permit others to use the Publisher Account; and (c) not to transfer or assign the Publisher Account’s password to any third party; (d) to promptly notify us if you suspect any unauthorized access to or use of the Publisher Account. Publisher is solely responsible for actions taken in the Publisher’s Account, we shall not be liable for any loss or damage arising from any unauthorized use of the Publisher Account or any other breach of security pertaining to the Publisher Account. You shall be responsible for all activities conducted on the Publisher Account.
• 2.2 We may, in our sole discretion, at any time: (a) determine the scope of the Services, including, the Ads that are available to the Publisher; (b) modify, replace or make any other changes to, or discontinue or suspend, the Services (or any part thereof) or the Publisher Account; and (c) review the Apps, and have the right, to edit, refuse, reject or remove the Apps from the Platform at any time and for any reason. We do not have any obligation to monitor any materials or content which are available as part of the Services.
• 2.3 Publisher shall display the Ads acquired by Advertisers and delivered by HyperBid in the Apps according to the terms of this Agreement, following any placement requirements and technical specifications provided by HyperBid, to enable proper delivery and display of such Ads. Publisher shall in no way add, modify, alter, delete content, text or appearance of the Ads without the prior written approval of Advertisers.
• 2.4 Subject to your compliance with this Agreement, you are entitled to a revocable, limited, non-exclusive, non-transferable and non-sublicensable license during the Term of this Agreement to access and use the Services solely for purposes of: (a) listing Inventory available on Apps for sale on the Platform; (b) displaying Ads on available Inventory; and (c) receiving reports of Advertisement requests, impressions and other data related to the display of Advertisement through the Platform.
• 2.5 During the Term of this Agreement, you hereby grant us a non-exclusive, royalty-free, worldwide, fully paid-up license: (a) to serve, route and place Ads on Inventory made available via Apps from the platform; (b) to use and display your name, trademarks, trade names, service marks and/or logos as well as those of the Apps in customer lists, website listings of customers, presentations, marketing materials, case studies, blog posts, to feature the Apps and identify you as a user of the Services.

3. Integration

• 3.1 Subject to your compliance with this Agreement, we hereby grant you a limited, worldwide, non-sublicensable, non-transferable, royalty-free, fully revocable, non-exclusive license to use the HyperBid software development kit and any related documentation, code (including sample code), tools, and API(s), including any upgrades, modified versions, updates, additions, and copies of the foregoing (collectively “SDK”) solely for the purpose of using the Services.

• 3.2 You will promptly integrate with the Apps and maintain, including by updating as soon as commercially available, the latest version of any required SDK, in a manner that complies with the technical and implementation requirements provided by us from time to time, and (b) comply with any instructions contained in any documentation for Services.

4. Publisher’s Obligations

• 4.1 It’s your obligation to warrant and undertake that you and the Apps will not: (a) engage in or encourage conduct that would be considered a criminal offense or could give rise to civil liability; (b) violate any applicable laws, regulations and HyperBid Policies (if any); (c) use, endorsement, and/or promotion of any content that may be considered as offensive, harmful, misleading, deceptive, fraudulent, unfair, immoral, indecent, pornographic, obscene, sexually explicit, excessively profane, racist, ethnically offensive, threatening, excessively violent, defamatory, hate speech, gambling, discriminatory, malware, illegal drugs or arms trafficking, alcohol, tobacco, prescription drugs or weapons; (d) violate of any third party terms which are available with or as part of any software and/or product whether used by you or otherwise; (e) distribute any material that contain any software viruses, contaminated file, worm, spyware, malware, adware or Trojan-horse or the like originating from the Apps; and (f) violate of with any terms, rules, guidelines and instructions, by IOS, Android and any other applicable mobile platform or operator.
• 4.2 You shall comply with all applicable laws, rules, and regulations relating to the collection, use and sharing of information about any user who views, is able to view, or interacts with any Advertisement in connection with your use of any of the Services (“End User(s)”). You shall post in the Apps a privacy notice that abides by all applicable laws and regulations and that provides legally adequate disclosure to the End Users about: (a) any information relating to End Users that will be provided or is otherwise accessible to HyperBid in connection with the Services, as set forth in the Privacy Policy; and (b) the mechanism in which an End User may opt-out of receiving targeted ads based on the End User’s behavior and interests. You hereby confirm that you have read and understood the Privacy Policy, and that nothing therein is contrary to your privacy notice contained in the Apps.
• 4.3 If the Apps are directed to children under the age of 16, or under any other age-threshold pursuant to the applicable laws, it’s your obligation to flag, through the Publisher Account, any Apps directed to children under the aforementioned age under the U.S. Children’s Online Privacy Protection Act and its implementing regulations (collectively, “COPPA”) and any other Apps that you believe to be subject to COPPA or to other child protection privacy laws, including the California Consumer Privacy Act (“CCPA”) and the EU General Data Protection Regulation 2016/679 (“GDPR”), in accordance to the age set forth in such legislation applicable to the End User (collectively, “Child Protection Laws”). For any Apps that are not indicated as directed to children, you must flag through the applicable API parameter or Publisher Account set-up, any specific End Users that are subject to COPPA, or any Child Protection Laws.
• 4.4 You shall engage End Users with full transparency and disclose to them: (a) your full name and contact details, and of any other person or entity that provides the Apps; (b) the terms and conditions, or license agreement (“Proprietary Terms“) that govern End Users’ use of the Apps; (c) all details about the effect of downloading and installing the Apps on the End User’s device, and any changes in the settings of the device as a result thereof. Meanwhile, you will make the Proprietary Terms easily accessible to End Users, prior to the installation process of the Apps, in the course of the installation, and through the Apps.
• 4.5 You are obliged to clearly and conspicuously distinguish Ads displayed on the Apps from the Apps’ content and features.
• 4.6 You acknowledge and agree that HyperBid shall in no way be responsible for any third-party products or services you may choose to manage with any of the Services. HyperBid has no obligation to monitor the content of any Ads to be or have been displayed on the Apps.

5. Non-solicitation

During the Term of this Agreement and for a period of one (1) year hereafter, you will not knowingly solicit, directly or through a third party, any Advertiser that is obtained through the Services provided by HyperBid under this Agreement. Without prejudice to any other right of HyperBid according to this Agreement and the applicable laws, in the event you directly solicit or cause to be transferred any Advertiser, you will pay HyperBid what HyperBid would have otherwise earned if you had not violated this Section.

6. Term and Termination

• 6.1 The term of this Agreement will commence on the date you create a Publisher Account and agree to the terms of this Agreement, and will continue until terminated by either Party as provided in this Agreement (“Term”).
• 6.2 This Agreement can be terminated in accordance with any of the following Subsections:
• 6.2.1 Either Party may terminate this Agreement upon giving five days’ prior written notice to the address and contact set forth in Section 16 below, for any reason and without liability.
• 6.2.2 Each party may terminate this Agreement immediately, if the other Party: (a) breaches any of its obligations, representations and/or warranties contained herein and does not cure such breach within ten days of receiving written notice from the other Party, or (b) becomes insolvent or makes any assignment (whether voluntary or involuntary) for the benefit of creditors or, or has any petition under bankruptcy, insolvency or administration law filed against it, which petition is not dismissed within thirty days of such filing, or has a trustee, administrator or receiver appointed for a material portion of its business or assets. If a Party becomes subject to any of the foregoing events it will immediately provide the other Party with written notification thereof.
• 6.3 HyperBid is entitled to suspend your ability to access or use the Services or terminate the Publisher Account. We may terminate this Agreement or any Publisher Account, with or without cause, in our sole discretion, at any time. Upon termination of this Agreement, any licenses granted to you in this Agreement will automatically terminate, and you must immediately cease all use of any of the Services.

7. Suspensions

HyperBid has the right, in its sole discretion, with or without notice, to suspend any application from the Publisher Account, the Publisher Account or your access to the Platform or any Service. You agree that HyperBid will not be liable for damages of any sort that result from any such suspension, modification, or discontinuance of the Publisher Account.

8. Data and Privacy Protection

• 8.1 HyperBid collects, stores and uses personal details of your authorized users and contact persons in accordance with our Privacy Policy that is located at [ ]. To the extent that any End User’s data includes personal data of individuals who are in the European Union, then HyperBid’s Personal Data Protection Addendum, which is attached hereto as Annex A, and serves as an integral part thereof, applies and the Parties agree to comply with its terms.
• 8.2 You shall be responsible to comply CCPA if you use Services in a way that causes HyperBid to collect personal information from California residents. You will provide all notices and offer all opt out choices required by the CCPA in accordance with our Privacy Policy. If you do not provide all notices and choices required by the CCPA, you may not use the Services in a way that causes HyperBid to collect personal information from California residents.

9. Confidentiality

• 9.1 The Parties agree that in connection with the Services and execution of this Agreement, they may provide each other with certain confidential and/or proprietary information, F Information in confidence in a manner no less secure than the manner in which it maintains its own confidential information, but in no case using no less than a reasonable standard of care. Notwithstanding the foregoing, Recipient may disclose Confidential Information only to those of its officers, directors, subsidiaries, employees, agents or professional advisors (collectively, “Representatives”) who have a need to know and who have agreed in writing (or are otherwise legally bound) to maintain the confidentiality thereof in a manner no less protective than the manner referred to herein. Recipient shall be responsible for any breach thereof by any of its Representatives as if committed by Recipient itself. Some of the features in the Platform may be identified or known to be “Beta” or “Experimental” features (“Beta Features”). It is hereby clarified that any information from Beta Features or the terms or existence of any non-public Beta Features shall be determined as HyperBid’s Confidential Information under this Section.
• 9.2 Confidential Information shall not include information that the Recipient can demonstrate: (a) is or has become publicly available without restriction through no fault of the Recipient; (b) is or has been received by the Recipient without restriction from a third party lawfully in possession of such information; (c) is independently developed by the Recipient without reference to the Disclosing Party’s Confidential Information; or (d) for which the Disclosing Party has given the Recipient written authorization to disclose to a third party. If the Recipient is required to disclose the Disclosing Party’s Confidential Information by law or legal process, the Recipient will immediately provide the Disclosing Party, to the extent it may legally do so, with reasonable prior written notice before any such required disclosure.
• 9.3 Each Party hereto agrees that the other Party may be irreparably injured by a breach of this Section and that the injured Party shall be entitled to seek equitable relief, including injunctive relief and specific performance, in the event of breach of any provisions hereof and may be entitled to recover its attorney’s fees. Any such equitable remedy shall be in addition to all other remedies available at law or in equity.

10. Intellectual Property Rights

• 10.1 As between the Parties: (a) HyperBid and our licensors (if any) retain all rights, title and interest, including Intellectual Property Rights in and to, any and all components of the Services, including without limitation to the Platform, SDK (if integrated) and HyperBid’s confidential Information, Ads (including any content placed in the Ads), and all modifications, enhancements, improvements, and/or derivatives to any of the foregoing. All rights in and to the foregoing not expressly granted hereunder are reserved by us and our licensors (if any); and (b) you and your licensors (if any) retain all rights, title, and interest, including Intellectual Property Rights in and to, any and all components of the Apps and Publisher’s Confidential Information, and all modifications, enhancements, improvements, and/or derivatives to any of the foregoing; all rights in and to the foregoing subsection which are not expressly granted hereunder are reserved to Publisher and its licensors (if any).
• 10.2 You shall not: (a) copy, modify, execute or perform publicly, make available to the public, reduce to human readable form, emulate, sell, resell, lease, rent, lend, sublicense, make any commercial use, process, adapt, translate, modify, reverse engineer, combine with any software or application (other than as expressly permitted under this Agreement), decompile, disassemble or create derivative works of any material that is subject to HyperBid’s Intellectual Propriety, other than as expressly permitted under this Agreement; (b) make any use of the Services, or any part thereof other than as expressly permitted hereunder; and (c) interfere with or disrupt the operation of the Services, or the servers or networks that host and/or connect with the Services and/or make them available, or disobey any requirements, procedures, policies, or regulations of such servers or networks.

11. Disclaimer

THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, HYPERBID MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT OR THOSE ARISING IN THE COURSE OF OR CONNECTED TO THE PERFORMANCE HEREUNDER, AND DISCLAIM ANY SUCH WARRANTIES. IN ADDITION, HYPERBID DOES NOT REPRESENT OR WARRANT THAT: (I) THE SERVICES OR ANY PART THEREIN WILL BE UNINTERRUPTED, ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; OR (II) FREE OF VIRUSES, WORMS, OR ANY OTHER HARMFUL COMPONENTS OR PROGRAM LIMITATIONS OR NON-INFRINGEMENT (III) YOU WILL PROFIT OR DERIVE ANY ECONOMIC BENEFIT FROM THE USE OF THE SERVICES.

12. Limitation of Liability

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, AND THE LIKE, INCURRED BY EITHER PARTY ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL HYPERBID BE LIABLE FOR DIRECT DAMAGES IN EXCESS OF THE AMOUNTS PAID BY YOU TO HYPERBID DURING THE SIX-MONTH PERIOD IMMEDIATELY PRIOR TO THE TIME THAT THE CAUSE OF ACTION AROSE.

13. Representations and Warranties

• 13.1 Each Party hereby represents, warrants and undertakes to the other Party, that: (a) this Agreement constitutes a valid and legally binding obligation of such Party, enforceable against it in accordance with its terms; (b) it has all requisite corporate power and authority to execute, deliver, and perform its obligations under the Agreement; (c) the execution of this Agreement and the performance by it of its obligations under the Agreement do not and will not violate any other obligation or agreement, law or regulation by which it is bound or to which it is subject; (d) it shall not bind the other Party to any agreement or obligation or give any representation, warranty or guarantee in respect of the other party, except for those that are specifically authorized by the other Party hereunder and/or in advance and in writing.
• 13.2 You hereby represent and warrant to HyperBid that: (a) you have and will maintain throughout the Term of this Agreement all rights, authorizations and licenses (including without limitation any Intellectual Property Rights) that are required with respect to (i) the Apps, (ii) to display Ads on the Apps, (iii) to permit HyperBid to perform the Services contemplated under this Agreement and (iv) to grant the rights you grant to HyperBid herein; (b) the Apps provided by you have been and are in compliance in all material respects with all applicable laws, and will not violate any legitimate rights enjoyed by any third parties; (c) all of the information provided by you to HyperBid to enroll in any Service is correct, accurate, complete and current at all times; and (d) you have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation any relevant data protection or privacy laws), and you will not cause HyperBid to be in violation of any applicable laws.
• 13.3 HyperBid hereby represents and warrants to Publisher that during the Term of this Agreement, it will use commercially reasonable efforts to provide the Services and perform its obligations hereunder, and the Services provided have been and are in compliance in all material respects with all applicable laws.

14. Indemnification

Each Party (the “Indemnifying Party”) will defend, hold harmless, and indemnify the other Party and/or its subsidiaries, affiliates, licensors, successors and permitted assigns, and their respective directors, officers, employees, and agents (collectively, the “Indemnified Party”) from and against any and all claims, suits, actions, demands, proceedings, costs, expenses, losses, damages and/or liabilities of any kind (including but not limited to reasonable attorney’s fees) asserted or filed, brought, commenced or prosecuted (“Claims”) by any third party against the Indemnified Party arising out of or relating to a breach or alleged breach of any warranty, representation or obligation made by the Indemnifying Party under this Agreement and with respect to Publisher as an Indemnifying Party, relating to the use of the Apps. The Indemnified Party will: (a) promptly notify the Indemnifying Party of any Claim; (b) provide the Indemnifying Party, at the cost of the Indemnified Party, reasonable information and assistance in defending the Claims; and (c) give the Indemnifying Party control over the defense and settlement of the Claims; provided, however, that any settlement will be subject to the Indemnified Party’s prior written approval (which approval shall not be unreasonably withheld or delayed). The Indemnified Party may join in the defense of any Claim at its own expense.

15. Governing Law and Dispute Resolution

This Agreement shall be construed and interpreted in all respects in accordance with the laws of England and Wales without regard to its conflicts of law provisions. All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with the said Rules in London and the language of the arbitration shall be in English. The arbitration award will be final and binding on both parties.

16. Miscellaneous

• 16.1 Entire Agreement. The Agreement constitutes the entire agreement between the Parties with respect to any Services. In the event of any conflict between this Agreement and any written agreement(s) between HyperBid and you, which have been signed by both Parties after the effective date of this Agreement, regarding any Services, the terms of the written agreement(s) will take precedence over the specific terms of this Agreement with respect to such conflict.
• 16.2 You and HyperBid are independent contractors, and nothing in this Agreement will create any joint venture, agency, franchise, sales representative, or employment relationship between the Parties. You have no authority to make or accept any offers or representations on behalf of HyperBid. You will not make any statement, on its website or otherwise, that reasonably would contradict anything in this Section.
• 16.3 All notices, instructions, demands, consents, approvals and other communications to be given or delivered under or by reason of the provisions of this Agreement by you to HyperBid shall be in writing and shall be deemed to have been given: (a) when personally delivered; (b) when delivered by an internationally recognized courier service to [ ]; or (c) when sent by email to [ ]. Notice to you may be effected by sending email to the email address specified in the Publisher Account, or by posting a message to the Publisher Account, and is deemed received when sent or posted.
• 16.4 The failure of HyperBid to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision. HyperBid’s waiver of any default is not a waiver of any subsequent default.
• 16.5 HyperBid reserves the right to change or modify any of the terms and conditions contained in this Agreement or applicable policies at any time and in its sole discretion upon providing notice to you. Any changes or modification will be effective immediately upon posting the revised Agreement on HyperBid’s official website or the Publisher Account, and you hereby waive any right you may have to receive additional notice of such changes or modifications. Your continued use of any Services following the posting of any revised Agreement will constitute your agreement to be bound by the revised Agreement. If you do not agree to any terms of the amended Agreement, you must stop using the Services immediately.

You may not assign or transfer this Agreement or any of your rights hereunder and any such attempt will be null and void.