These general terms and conditions (hereinafter referred to as the “Terms and Conditions” or “Terms”) govern all of the Service rendered by Bidlogic as identified in the Insertion Order as ordered by the Client.
Unless otherwise expressly agreed by the Parties, any Insertion Order sent to Bidlogic shall be deemed to include the Client’s express acceptance of these Terms and Conditions, to the exclusion of any other general terms and conditions appearing in any other document.
Ad Mediation – shall mean each of advertisement service and networks, serving advertisements provided by third party advertisers for display within the Applications, as set forth in each Insertion Order.
Agreement – shall mean these Terms and Conditions and stipulations of each of the Insertion Orders.
Applications – shall mean software applications distributed by the Client as specified in each Insertion Order, which shall be subject to Intelligent Bidding Service.
Bidlogic – shall mean an entity defined as Bidlogic in each of the Insertion Orders, i.e. Vivid Games S.A. or an affiliate thereof as the case may be.
Client – shall mean an entity defined as Client in each of the Insertion Orders.
Day – shall mean calendar day, unless expressly stated otherwise.
Insertion Order – shall mean an order placed by the Client stating the scope of the Service, term of the Agreement, pricing conditions and other applicable specific terms and conditions.
Intellectual Property – shall mean any and all intellectual property and/or proprietary information under any applicable law, including, but not limited to, inventions, patents and patent applications, marks, logos, copyrightable materials, graphics, text, images, designs, the “look and feel”, specifications, methods, procedures, information, know-how, proprietary knowledge, financial and marketing information, business plans, formulae, technology databases, compilations, algorithms, data, technical data, interactive features, source and object code, files, interface and trade secrets, whether or not registered or capable of being registered, and any derivative works thereof.
Intelligent Bidding or Service – shall mean automating waterfall management (i.e. determination of order in which the integrated ad networks are initiated one at a time and ranked by performance to show an in-application advertisement). inside the Ad Mediation as a service provided by Bidlogic as specified in the Insertion Order.
Parties, Party – shall mean Client and Bidlogic collectively or either of the aforesaid.
- Entering into the Agreement
- By either:
- clicking “Accept”, “Sign Up”, “Log In” or any other similar language;
- accessing or using the Service or Client’s accounts or
- signing an Insertion Order
any person is consenting to be bound by the Agreement and agrees that from such point onward shall be treated for all intents and purposes by Bidlogic as a Client. If such a person does not accept the Agreement in its parts on entirety, such person should refrain from taking any of the aforesaid actions.
- In case a person performs one of the activities as set forth in pt. a above and such person is an employee, member or agent of an entity already bound by the Agreement such person shall not be considered a Client and any performance by such person shall be deemed to be performed by such entity.
- Term and Termination
- This Agreement will commence on the Effective Date (as defined in the applicable Insertion Order and in case no Insertion Order was signed – the date of performing the earliest of actions set forth in Paragraph 1) and will continue for a 1 (one) year period unless it is terminated as set forth herein (the “Term”). The Term shall be automatically extended for further 1 (one) year periods if not terminated before the lapse of previous Term. Each such extension of the Term shall be considered a Term as well.
- Unless otherwise stated in the Insertion Order, either Party may terminate this Agreement upon 30 (thirty) days’ prior written notice, for any reason and without liability.
- Each Party may terminate this Agreement immediately, if the other Party:
- breaches any of its obligations, representations and/or warranties herein contained and does not cure such breach within 7 (seven) days of receiving written notice thereof, or
- 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, or has a trustee, administrator or receiver appointed for a material portion of its business or assets or becomes subject to any similar event, depending on legislation applicable to such event.
- If a Party becomes subject to any of the aforesaid events it shall immediately provide the other Party with written notification thereof.
- In case Bidlogic opts to discontinue the Service for any reason, Bidlogic shall be entitled to terminate the Agreement immediately.
- In case of termination Bidlogic may delete any and all data stored in the Client’s account in the Service, shall not be liable for such deletion and shall not have any obligation whatsoever to maintain such data or provide any kind of backup for such data.
- Any sections of this Agreement which may pertain to relations between the Parties after the termination of the Agreement, such as disclaimers, indemnifications and limitations of liability shall survive such termination.
- License and Intellectual Property rights
- Bidlogic and its licensors (if any) retain all rights, title and interest, including all Intellectual Property in and to, any and all components of the Service, all information connected with the Service, 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 to Bidlogic and its licensors (if any).
- Client and its licensors (if any) retain all rights, title, and interest, including Intellectual Property in and to, any and all components of Applications.
- Bidlogic hereby provides Client with a limited, non-exclusive, non-sub licensable, non-transferable, royalty free worldwide right only during the Term of this Agreement, to use the Service according to the terms of this Agreement. Each party acknowledges and agrees that any and all goodwill and other proprietary rights that are created by or that result from a party’s use of the other party’s trademarks as well as any other property as permitted hereunder will inure solely to the benefit of the other party.
- The Client (or any person acting on its behalf) may 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 Bidlogic’s Intellectual Property, other than as expressly permitted under this Agreement; (b) make any use of the Service, or any part thereof other than as expressly permitted hereunder; and (c) interfere with or disrupt the operation of the Service, or the servers or networks that host and/or connect with the Service and/or make them available, or disobey any requirements, procedures, policies, or regulations of such servers or networks.
- Upon Client’s consent expressed at least in an email form Bidlogic may: (a) feature the Client’s Application and trademark in different marketing materials and as part of promotional campaigns, including newsletters, case studies and press releases; and (b) identify Client as a user of the Service.
- Using the Service
- In order to use the Service the Client shall register an account in the Service and follow all instructions as provided by Bidlogic. The account shall allow the Client as well as other users designated by the Client to use the Service on Client’s behalf.
- In order to use the Service Client needs to provide Bidlogic with certain data concerning Client’s participation in the Ad Mediation platforms. Bidlogic shall have access to some of the Client’s data concerning Client’s participation in the Ad Mediation platforms (“Data”). Data shall be copied to Bidlogic servers in order to allow analysis of such Data and presenting Client with outcomes of use of the Service. Such outcomes shall be presented in the Client’s dashboard available in the Client’s account in the Service.
- After registering of the Client owner-level account Client agrees: (a) to keep its password secure and confidential; (b) not to permit others to use the Client account; (c) not to transfer or assign the Client account’s password to a third party and (d) distribute user-level accounts among Client’s employees and agents, keep passwords to such accounts secure and confidential and do not transfer or assign such accounts to any third parties. Client is solely responsible for actions taken in Client’s account, including actions and omissions of Client’s employees and agents, Bidlogic shall not be liable for any loss or damage arising from any unauthorized use of the Client accounts or any other breach of security pertaining to the Client accounts, including with respect to any Client details update made through the Client accounts. Client agrees to notify Bidlogic immediately of any unauthorized use of the Client accounts or any other breach of security.
- Bidlogic may, in its sole discretion, at any time: modify, replace or make any other changes to, or discontinue, the Service (or any part thereof).
- Bidlogic is entitled to receive payments for the use of Service by the Client. Such payments shall be indicated in each Insertion Order and shall follow the general rules set out herein.
- Unless set forth otherwise in the Insertion Order, the Client shall receive invoices on a monthly basis. Such invoices shall be sent to the billing address provided by the Client and shall be paid within 14 (fourteen) days after the end of the calendar month which each invoice pertains to.
- Termination or unavailability of the Service within a month shall not affect the payment.
- Each Party shall be responsible for payment of their taxes and other public fees pertaining to such Parties participation in the Service.
- No payments are charged for a trial period, i.e. use of the Service before an Insertion Order is agreed on.
- Client Obligations
- Client will comply with all rules and law provisions which are or may become in the future relevant to the use of the Service by the Client. In particular in the scope of using the Service in relation to the Applications the Client shall be solely liable for compliance with agreements, terms of service or any other similar documents or rules provided by Ad Mediation operators.
- Representations and Warranties
- Each party hereby represents, warrants and undertakes to the other party, that: (a) the Agreement constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms; (b) it has all required corporate power and authority to execute, deliver, and perform its obligations under the Agreement; (c) the execution of the Agreement and the performance by it of its obligations under the Agreement does not and will not violate any other obligation or agreement, law or regulation by which it is bound or to which it is subject; and (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.
- Bidlogic hereby represents, warrants and undertakes that during the Term hereof, it will use commercially reasonable efforts to provide the Service and perform its obligations hereunder.
- Client hereby represents, warrants and undertakes that:
- it is solely responsible for the Applications
- Client will not act in any manner that may have any adverse impact on the goodwill and/or reputation of Bidlogic;
- Client will only use the Service for the purposes and in the manner expressly permitted under the Agreement;
- all information provided by the Client to Bidlogic before or after the date of entering to this Agreement shall be correct and accurate.
- Disclaimers, Limitations of Liability and Indemnification
- The Service is provided on an “as-is” basis. Except as expressly provided in this agreement and to the fullest extent allowable by applicable rules, Bidlogic 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, Bidlogic does not represent or warrant that:
- the Service or any part therein will be uninterrupted, error free or that any errors will be corrected; or
- free of viruses, worms, or any other harmful components or program limitations or non-infringement
- Client will profit or derive any economic benefit from Client’s use of the Service.
- In no event will either Party, its officers, directors, employees or agents, be liable to the other party or any other person or entity, for any special, incidental, consequential, exemplary or punitive damages, including without limitation to damages for any lost profits or revenues, loss of goodwill, service interruption, loss of customers, loss of any equipment or software, systems, computer damage or system failure, loss of data or information, service interruption, interest charges or cost of capital, cost of procurement of substitute equipment, software, systems or services, arising out of or in connection with the Agreement or with respect to either Party’s ability or inability to use the Services under any theory of liability, including without limitation, to contract or tort (including products liability, strict liability and negligence), and whether or not such Party should have reasonably foreseen or should have been aware or advised of the possibility of such damage and notwithstanding the failure of essential purpose of any limited remedy stated herein. In no event will either Party’s aggregate liability for any claim arising out of or related to the Agreement, to the fullest extent permitted under applicable law, exceed the amounts received by Bidlogic under the agreement during the 3 (three) month period immediately preceding the date on which such claim is made.
- Each Party (“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 (“Indemnified”) 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 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. The Indemnified will:
- promptly notify the Indemnifying Party of any Claim;
- provide the Indemnifying Party, at the cost of the Indemnified, reasonable information and assistance in defending the Claim; and
- give the Indemnifying Party control over the defense and settlement of the Claim; provided, however, that any settlement will be subject to the Indemnified prior written approval (which approval shall not be unreasonably withheld or delayed). The Indemnified may join in the defense of any Claim at its own expense.
- In the performance of this Agreement, each Party (including their respective employees, agents, or representatives) is likely to have contact with information of substantial value to the other, which gives the disclosing Party an advantage over its competitors who do not know or use it, including but not limited to: techniques, designs, drawings, processes, invention, developments, equipment, prototypes, sales and customer information, and business and financial information, relating to the disclosing party’s business, products, practices, or techniques (“Confidential Information”). Each party agrees to regard and preserve as confidential such Confidential Information at all times, and to refrain from publishing or disclosing any part of such Confidential Information and from using it except on behalf of the disclosing party. Each party agrees to limit disclosure of such Confidential Information to those of its employees, agents, representatives, or other consultants who have an actual need to know the Confidential Information and have a written obligation with the receiving party to protect the confidentiality of such Confidential Information. Each party further agrees, at all times, to refrain from any other acts or omissions that would reduce the value of such Confidential Information to the disclosing party. Upon termination of this Agreement or at the request of the disclosing party, the receiving party agrees to promptly surrender to the disclosing party all documents, promotional material, audio or videotapes, or any other items in whatever form, which are the property of the disclosing party or which contain or comprise such Confidential Information.
- Bidlogic is a member a capital group in which the parent company is a listed company, and is therefore is obliged to publish and disclose to the general public information pertaining to Bidlogics commercial relations, including confidential information as well as abide by other public obligations such as keeping records of confidential information and insider lists. The Client acknowledges that some of the information relating to relationship of the Parties may become subject to public disclosure pursuant to stock market regulations. The Client acknowledges that the Client and some of its employees and agents may be included on insider lists kept by Bidlogic or it’s affiliates for regulatory purposes. The Client shall cooperate with Bidlogic or its affiliates in order to allow Bidlogic or its affiliates to comply with relevant stock market regulations. As a result of the above, the Client hereby commits not to disclose any information about this Agreement or the use of the Services without the prior written consent of Bidlogic.
- This Agreement constitutes the entire understanding between the Parties with respect to the matters referred to herein and supersedes and cancels all prior agreements to the subject hereof, if any, between the Parties with exception of the Insertion Orders which remain in force and in case of any discrepancies shall prevail over the stipulations of the Agreement.
- If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances.
- Failure to enforce any rights or to take any action against either party in the event of any breach hereunder shall not be deemed as a waiver of such rights or of subsequent actions in the event of future breaches.
- Neither Party shall be entitled to assign or transfer this Agreement or any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party, however such consent shall not be unreasonably withheld. Notwithstanding the foregoing, Bidlogic may assign any of its rights and obligations under this Agreement, without receiving Client’s consent: (a) if such assignment is made to any of its affiliates or subsidiaries, provided that Bidlogic will notify Publisher of such assignment; or (b) in connection with any merger, consolidation, change of control or sale of all or a material portion of Bidlogic’s assets. Any unauthorized assignment or transfer shall be null and void.
- This Agreement will be governed by, constructed and enforced in accordance with the laws of the Republic of Poland, without regard to its conflicts of law principles or provisions. Any disputes arising out of or in connection with this Agreement shall be exclusively settled by a common court relevant for Bidlogic’s seat of incorporation.
- Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, internet outages, war, governmental action, or any other cause that is beyond the reasonable control of such party and may be deemed a force majeure event.
- All notices required or permitted under this Agreement shall be in English and in writing. Notices shall be delivered as follows: (a) to Bidlogic – by e-mail, registered or certified mail (postage prepaid) or by overnight courier service, at the address set forth in the Insertion Order, and (b) to Client by e-mail to address associated with Client’s account or indicated in the Insertion Order.
- Bidlogic may at any time amend or modify the Agreement or the scope of the Services without Client’s approval. In such a case Bidlogic shall immediately notify of such amendment or modification using the Client’s account.