Terms & Conditions
PLEASE CAREFULLY READ THE FOLLOWING WHITEMOBI.COM GENERAL TERMS AND CONDITIONS (THE “TERMS & CONDITIONS”) BEFORE USING WHITEMOBI.COM SERVICE. BY CLICKING THE “I ACCEPT” BUTTON YOU (EITHER INDIVIDUALLY OR ON BEHALF OF THE ENTITY OR COMPANY THAT YOU DULY REPRESENT) ARE ACCEPTING AND AGREEING TO BE UNCONDITIONALLY BOUND BY THE TERMS & CONDITIONS AND ALL TERMS, POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. YOUR CONTINUED USE OF THE WHITEMOBI.COM SERVICE SHALL ALSO CONSTITUTE ASSENT TO THE FOREGOING. WHITEMOBI.COM SERVICE IS ONLY AVAILABLE TO INDIVIDUALS WHO ARE AT LEAST 18 YEARS OLD OR TO COMPANIES THAT ARE DULY INCROPRATED AND ARE LEGALLY PERMITTED TO CONDUCT BUSINESS, IF YOU DO NOT COMPLY WITH THE FOREGOING REQUIRMENTS AND/OR DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THE TERMS & CONDITIONS, DO NOT CLICK ON THE “I ACCEPT" BUTTON AND CEASE ALL USE OF THE WHITEMOBI.COM SERVICE.
The terms and conditions set forth herein (hereinafter the “Terms & Conditions” or “Agreement”) shall apply on the relationship between WhiteMobi.com and you (“You”) as the developer/owner/operator of a web or mobile application (the “App”) regarding Your use of WhiteMobi.com service (the “Service”) as further detailed herein.
WhiteMobi reserves the right to modify and/or change any of the terms and conditions of this Agreement, on a non retroactive basis, at any time and without prior notice, and such changes will become effective upon their publication in the following address: http://whitemobi.com/terms-and-conditions. WhiteMobi will also update the "last updated date" at the end of the Agreement. By continuing to use the Service, You agree to be unconditionally bound by the modified Agreement. If the modified Agreement is not acceptable to You, Your only recourse is to cease using the Service.
USE OF THE SERVICE
2.1. In order to access and use the WhiteMobi Service You are required to complete the registration process and establish a service account. Upon completion of such registration, You shall be granted user name and password to your own service account (the “WhiteMobi Account”). By opening the WhiteMobi Account You hereby agree to be responsible for securing your password and log in procedure details.
2.2. In order to activate the WhiteMobi Account, You are required to follow the technical instructions and requirements detailed in the following address: as may be amended from to time by WhiteMobi at its discretion.
2.3. You hereby grant WhiteMobi the right to use the App logo’s, trademarks and App’ description as may appear on the applicable application store (i.e. Apple Store, Google Play, etc.) as part of and for the purpose of performing the Service.
3.1. Upon activation of the “Live” mode of the Service and the successful instalment of the applicable integration tool (e.g., SDK) on your App, WhiteMobi may, from time to time, deliver/make available Advertisement’s campaigns (the “Campaign”) to be displayed in the App through the Ad Unit (as defined below). Each Campaign will include the campaign details inter alia, pay outs, and inventory to be delivered (e.g., impressions, clicks or other desired actions). However Your right shall be limited to the removal of the entire Advertisement from the App, and in any event You shall not add, modify, alter, delete content, text, creative or appearance of the Advertisement or deviate from Advertisement display instructions without the prior written consent of WhiteMobi.
For the purpose hereof “Advertisement” means an advertisement and/or interactive advertisement that contains certain advertising content and “Ad Unit” means WhiteMobi browser window, which, when installed, shall appear on the App and via which the App’s users shall be able to view the Advertisements and/or participate in the applicable interactive offers offered thereon.
3.2. WhiteMobi will not be obligated to pay for any fraudulent actions generated by any person, bot, automated program or similar device in connection with any Advertisement, as reasonably determined by WhiteMobi or its advertisers.
4.1. Payment Methods. As a condition for receiving payments hereunder, You are required to follow the instructions set forth in the payment information page at the following address http://whitemobi.com/account/payment-info (“Account Payment Info Page”), as may be amended from time to time by WhiteMobi, at its sole discretion, inter alia You are required to fill in certain information required for payment and elect Your preferable payment method from the options set forth therein (the “Payment Method”).
4.2. Payment Terms. WhiteMobi shall pay your Revenue Share (as defined below) out of the Net Advertising Revenues (as defined below) generated in a given month, within thirty (30) days after the end of such calendar month as a conclusive payment for said month, provided however that if the Revenue Share due for a given month amounts to less than one hundred USA dollars ($100.00) (the “Minimum Threshold”), WhiteMobi shall be entitled to postpone the payment of such amount until such calendar month in which the cumulative amounts due are equal to or exceed said Minimum Threshold.
For the purpose of this Agreement: (i) “Qualified Transaction” means with respect to an Advertisement, the completion by the App’s user of certain requirements set forth in such Advertisement such as, for example purposes only, viewing an advertising video, purchasing a product/service or installing an application; (ii) “Net Advertising Revenues” means the gross revenues payable for Qualified Transactions concluded through Advertisements published in the App - less certain deductions made according to WhiteMobi policy (as may be amended from time to time), such deductions to include inter alia, taxes and other governmental charges including but not limited to VAT (if applicable) that WhiteMobi is required to pay, collect or withhold with respect to the supply of the Service (except taxes that apply on Supersonic’s income) (the “Taxes”), allowance for fraudulent transactions, chargebacks, refunds, financing expenses, uncollected and unallocated amounts, currency exchange fees, payments such as commissions or discounts allowed or paid to advertising agencies, sales commissions, agency fees, referral fees, wire/PayPal transfer fees and costs related to creative services, upload, and technology (such as hosting) used in provision of the Service, any fees paid to or deducted by third party payment provider; (iii) “Revenue Share” means your share (as detailed in the applicable Campaign) out of the Net Advertising Revenue generated in such Campaign.
4.3. Tracking and Reporting. Notwithstanding the foregoing, the actual payment shall be based on Qualified Transactions that were recorded by WhiteMobi tracking and reporting platform. WhiteMobi shall provide You with access to the tracking and reporting platform through the WhiteMobi online interface. You acknowledge that revenue reports are estimated and may be updated prior to actual payment. The final Revenue Share paid shall be calculated by WhiteMobi based on the tracking and reporting platform and shall be conclusive.
4.4. Non Payment. Notwithstanding anything to the contrary set forth in this Agreement, it is clarified that WhiteMobi shall not be obligated to pay for Qualified Transactions created in deviation from the approved budget or exceeding the caps on delivery (on a daily, weekly or monthly basis) (if applicable), all as set forth in the applicable Campaign’s terms and/or in the event that You have materially breached any of your obligations and/or warranties under this Agreement, inter alia, performed (directly or indirectly) fraudulent actions generated by any person, bot, automated program or similar device in connection with any Advertisement for the creation of Qualified Transactions, and/or failed to comply with any or all Campaign’s guidelines and terms, all as reasonably determined by WhiteMobi or its Advertisers.
4.5. Tax. All payments due to You under the Agreement are exclusive of Taxes. You shall be responsible for payment of all Taxes and any related interest and penalties (if any) resulting from payments made to You hereunder (excluding Taxes based on WhiteMobi income) and WhiteMobi shall be entitled to withhold such amounts if required under applicable law.
REPRESENTATIONS AND WARRANTIES
5.1. Each party hereby represents and warrants to the other party that: (i) it has the full right, power and authority to enter into this Agreement and perform its obligations hereunder; (ii) this Agreement is a valid and binding obligation of such party; and (iii) it has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder.
5.2. In addition, You hereby represent, undertake and warrant that:
5.2.1. the App, activities performed through the App, any content displayed therein and the App Campaign:
22.214.171.124. shall not include (i) pornography; (ii) Gambling; (iii) copyright infringements and/or (iv) any other illegal, objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services or activities) or link to any of the foregoing;
126.96.36.199. shall comply with all applicable international, federal, and state laws, rules and regulations, inter alia, any publicity or privacy laws, data protection laws, false advertising laws, propriety laws, intellectual property laws and all laws and regulations that may apply to Internet advertising, including, but not limited to the Children's Online Privacy Protection Act, the Can-Spam Act of 2003, the Federal Trade Commission Act and the Digital Millennium Copyright Act;
5.2.2. You shall not generate Qualified Transactions through automated, deceptive, fraudulent or other invalid means, including but not limited to, repeated manual clicks, use of robots or other automated tools or authorize or encourage or allow third party to do so.
5.2.3. Any information You provide to WhiteMobi as part of the registration processes or in general are true and accurate.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS”. WHITEMOBI DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT. WHITEMOBI MAKES NO WARRANTY REGARDING THE ADVERTISEMENTS, INCLUDING IN TERMS OF QUALITY, LEGALITY AND NON INFRINGEMENT, AND SHALL HAVE NO LIABILITY REGARDING PRODUCTS/SERVICE SOLD AND/OR PROMOTED THROUGH SUCH ADVERTISEMENTS. WHITEMOBI MAKES NO WARRANTY THAT THE SERVICE AND ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. WHITEMOBI DOES NOT MAKE, AND THIS AGREEMENT DOES NOT PASS TO YOU IN ANY WAY, ANY REPRESENTATION, WARRANTY OR UNDERTAKING ON BEHALF OF ITS SUPPLIERS OR LICENSORS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
Confidentiality. A party (the “Receiving Party”) may use the other party’s Confidential Information (the “Disclosing Party”) only as necessary to exercise rights and perform obligations under the Agreement. Receiving Party shall not disclose the Confidential Information of the Disclosing Party to any third party without its written consent. Receiving Party will protect Disclosing Party’s Confidential Information from disclosure or misuse by using the same degree of care as for Receiving Party’s own Confidential Information of like importance, but will at least use reasonable care. Each Party agrees to restrict access to the Confidential Information to those of its officers, directors and employees (including of its related bodies corporate), independent contractors or service providers it retains (collectively “Employees”), who have a "need to know", have been instructed as to the confidential nature of such information and are bound by written confidentiality obligations at least as stringent and onerous as the obligations imposed on the parties hereto. A Party hereto shall be liable to the other in the event that any of its Employees breach these obligations. However, Confidential Information shall not include any information that Receiving Party can demonstrate is: (i) known by the Receiving Party (without breach of any confidentiality obligation by any third party) prior to disclosure by the Disclosing Party; (ii) independently developed by the Receiving Party without the use of or reference to any Confidential Information; (iii) legally received by the Receiving Party (without breach of any confidentiality obligation by any third party) from a third party that is not under a confidentiality obligation to the Disclosing Party; or (iv) publicly available through no breach of this Agreement by Receiving Party. “Confidential Information” means all non-public information whether disclosed orally, in writing or in any other manner, in any form and in any media, including without limitation, any and all financial, technical, business information relating to the either party, information related to clients, methods, ideas, concepts, software, trade secrets or other intellectual property rights, formulations, data, know how, designs, inventions, discoveries, processes and any sales, financial, contractual and marketing information and any information of a confidential nature concerning products or services of the parties.
11.1. You (the “Indemnitor”) will indemnify, defend and hold WhiteMobi and/or WhiteMobi's officers, directors and employees (the “Indemnified Party”) harmless, at your own expense, against any claims, actions, damages and costs (including but not limited to reasonable attorneys' fees and costs) finally awarded by a court of competent jurisdiction or as part of a settlement for the benefit of a third party, arising out of or based upon: (i) a third party claim that the App and/or App Campaign and any content therein infringe Intellectual Property rights of third parties; (all referred to herein as (the “Infringing Property”); or (ii) your breach of any representation or warranty set forth herein, (collectively, the “Claim”).
Limitation Of Liability
12.1. OTHER THAN IN EVENTS OF WILFUL MISCONDUCT AND THE INDEMNIFICATION OBLIGATION, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR TORT DAMAGES OF ANY NATURE OR KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF GOODWILL, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), SERVICE LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2. THE ENTIRE LIABILITY OF EITHER PARTY SHALL BE LIMITED TO THE AMOUNT OF CONSIDERATION ACTUALLY PAID OR DUE TO YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE LIMITATION OF LIABILITY IN THIS SECTION WILL NOT APPLY TO ANY OF THE FOLLOWING: (I) INDEMNIFICATION OBLIGATION UNDER SECTION 11; OR (II) WILLFUL MISCONDUCT. THIS LIMITATION OF LIABILITY IS APPLICABLE TO THE FULLEST EXTENT PERMITTED UNDER THE APPLICABLE LAW.
Term and Termination of Agreement
13.1. Term. This Agreement shall commence upon the date that this Agreement is deemed accepted as set forth in the preamble of this Agreement and shall remain in full force and effect until terminated as set forth hereunder (the “Term”).
13.2.1. Either Party hereto may terminate this Agreement, at any time, for any reason, upon seven (7) business days prior written notice provided to the other Party.
13.2.2. Additionally, You shall have the right to terminate this Agreement upon three business (3) days prior written notice if WhiteMobi is in material breach of any material obligation under this Agreement and it fails to remedy such breach within the notice period. WhiteMobi shall have the right to temporarily or permanently deactivate your account and terminate this Agreement and your use of the Service, with immediate effect, in the event You have materially breached any of Your obligations and/or warranties under this Agreement inter alia, performed fraudulent actions for the creation of Qualified Transactions (as defined below), or if failed to comply with WhiteMobi and/or its advertisers polices and standards regarding the inventory made available by You, all according to the discretion of WhiteMobi or its advertisers.
(i) You may not assign this Agreement in whole or in part without the prior written consent of WhiteMobi. WhiteMobi may assign this Agreement in whole or in part without Your prior written consent as long as its successor or assignee of this Agreement agrees in writing to be bound by this Agreement. Any assignment in violation of this provision shall be deemed null and void; (ii) This Agreement and the exhibit attached hereto constitute the entire and exclusive agreement between the Parties with respect to the subject matter hereof; (iii) In the event any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect; (iv) Any written notice required or permitted to be given under this Agreement shall be deemed to have been given and made if it is: (a) delivered in person, (b) sent by same day or overnight courier, (c) mailed by certified or registered mail, return receipt requested, postage prepaid, or (d) delivered by facsimile or email the transmittal of which with respect to fax shall be confirmed. Notices will be deemed effective on the date of delivery in the case of personal delivery, or three (3) business days after mailing or on the date of dispatch in the case of notification by facsimile or email. WhiteMobi 's addresses for purposes of notice shall be the address detailed in its website and your addresses for purposes of notice shall be the address provided as part of the registration procedure unless updated in writing at a later stage.
Last Revision Date: May 10th 2015