Terms of Use

Terms and Conditions: Last Updated on October 20, 2015

These Terms and Conditions relate to, and incorporate, that certain Work Order as exists between Kixer and Publisher and sets forth the terms and conditions under which: (a) Publisher shall place a widget provided by Kixer (the “Widget”) on or within the Application(s) and shall permit Kixer to utilize information provided to it by the Widget in order to make recommendations (“Recommendations”) regarding videos, advertisements, mobile applications and other content supplied by third parties (“Kixer Sponsored Content”) to Application visitors (“Visitors”); and (b) Kixer shall share with Publisher the revenues that Kixer receives from third-party advertisers (“Advertisers”) as compensation for Visitors engaging with (e.g. installation of sponsored mobile applications, clicking, etc.) Recommendations in the manner required by Advertisers. Kixer’s provision of Recommendations shall be referred to herein as the “Service.” Capitalized terms not defined in these Terms and Conditions shall have the meanings ascribed to them in the Work Order.

  1. Grant of Rights: During the Term, Kixer grants Publisher the right to place the Widget on or in the Application(s) (each, a “Placement”) and to display Recommendations to Visitors. Publisher agrees that the Widget will be placed in the location and in conjunction with the same elements specified by Kixer. Publisher understands and agrees that it will not launch the Widget unless the location/display of the Widget has been approved in writing by Kixer. Publisher (a) grants Kixer the right to interact with the Widget as required by the Service (including the collection of data therefrom and delivery of Recommendations thereto) and (b) agrees not to take any action that might impede Kixer’s provision of the Service. Publisher agrees to maintain each Placement throughout the Term. In order to facilitate maintenance and optimization of the Service, Kixer may at any time during the Term conduct tests on how Visitors interact with Kixer Sponsored Content.
  2. Acceptable Use Policy: Publisher agrees that it will not, either by itself or by authorizing or encouraging others to do so, directly or indirectly: (a) use, post or promote the Widget or any Recommendations, or in any way use the Service, in association with any material or content which is, or which may be reasonably considered to be illegal, unlawful or infringing under any applicable laws, pornographic, obscene, promotional of illicit drugs and drug paraphernalia, gambling-related, weapon or ammunition-related, violent, libelous, defamatory, indecent, seditious, offensive, invasive to privacy, abusive, threatening, harmful, vulgar, possibly capable of inciting racial hatred, discriminatory (racially, ethnically or otherwise), in breach of confidence or any other right of any third party, or lacking in necessary authorizations, approvals, consents or licenses; (b) engage in any action or practice that disparages or devalues Kixer, the Service, the Widget, the Kixer Sponsored Content, or the reliability, reputation or goodwill of any of them; (c) modify, change, edit, amend, truncate, alter, bypass or reorder any aspect of the Widget, the Service or Recommendations; (d) generate clicks, installs or other interactions with Recommendations through any incentivized, automated, deceptive, fraudulent or other means that is designed to generate clicks, downloads or other engagements that are not the willing actions of human end users who possess an independent, genuine desire to engage with the content that appears on the relevant page(s), including but not limited to, through (i) repeated manual clicks or installs, use of robots or other automated tools or computer generated requests, (ii) participation in pay-per-click or pay-per-download programs that re-sell the Service, or (iii) the provision of consideration to any third party in exchange for the third party causing any clicks or downloads to occur; (e) copy, crawl, index, cache or store any information derived by Kixer, or contained in or concerning a Recommendation; or (f) provide Kixer any Personally Identifiable Information concerning any Visitor or other person.
  3. Compensation: All Publisher Payments earned by Publisher shall be remitted to Publisher in U.S. dollars within sixty (60) business days after the end of the calendar month in which the related Gross Revenue was collected by Kixer from its Advertisers, provided that Publisher has provided Kixer with the necessary tax related forms required. Each party will be responsible for its own taxes. Notwithstanding the foregoing, in the event that Publisher’s earnings do not equal or exceed $100 in a month, Publisher will not receive a Publisher Payment and such earnings will be rolled over and held until they equal or exceed at least $100. In the event Publisher removes the Widget from the Application prior to proper termination of the Work Order or the Agreement, Publisher shall forfeit any and all accrued and unpaid earnings and Kixer shall be entitled to retain such earnings for its own account. Any installs or clicks deemed by Kixer to have been generated as a result of incentivized traffic shall not be paid for and shall be subject to clawback from Publisher. Publisher Payment shall be as defined in the Work Order, provided, however, that in the event the Work Order does not specify the revenue share rate or otherwise specify the basis of the Publisher Payment, such Publisher Payment (e.g. revenue share rate, etc.) shall be as determined by Kixer in its sole discretion and such determination shall be definitive. For Work Orders entered into prior to October 25, 2015, the term “Publisher Payment” shall mean “Revenue Share.”
  4. Definitions:
    1. Adjusted Gross Revenue” shall consist of all advertising fees paid by Advertisers to Kixer for the advertising activity on Publisher’s Application(s) (“Gross Revenue”), net of any applicable taxes thereon, minus a platform usage fee of up to 25% of Gross Revenue, which may include, at Kixer’s discretion and without limitation, platform improvement investment fee as solely determined by Kixer, creative production fees, CDN/ad serving fees, commissions on revenue, third party technical operations costs, amounts of credit card processing fees, bad debt allowances, charge-backs, deductions, reversals, or credits and refunds to Advertisers.
    2. Personally Identifiable Information” or “PII” shall consist of any piece of information which can be used to uniquely identify, contact, or locate a single person, or can be used with other sources to uniquely identify, contact, or locate a single person.
  5. Service Exclusivity: During the Term, Kixer shall be the exclusive provider of native app install services for the Application and Publisher agrees that it will not engage any third party or use any third party product(s), including without limitation any native mobile application marketing product(s) designed to acquire users/installs of mobile apps, other than the Service.
  6. Publisher Representations and Warranties: Publisher represents and warrants that (i) it owns and operates the Application(s), (ii) it has the full right and authority to grant the rights granted hereunder, (iii) Kixer’s use of the Application(s) in the manner provided for herein or contemplated hereby will not infringe upon the rights of any third party; (iv) it will comply with Kixer’s Terms and Conditions as may be updated from time to time and (v) the Application(s) comply with all applicable laws and regulations.
  7. Kixer Representations and Warranties: Kixer represents and warrants that the Widget will be provided to Publisher in accordance with the specifications set forth herein, as they may be modified from time to time. THE FOREGOING REPRESENTATIONS AND WARRANTIES ARE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES MADE BY KIXER. KIXER PROVIDES THE SERVICE “AS IS.” KIXER EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
  8. Privacy Policies: During the Term, Publisher shall publish and maintain a privacy policy on or accessible through Publisher’s Application(s) as set forth in this Section. Publisher shall ensure that the privacy policy for Publisher’s Application(s) accurately describes the practices of the Application(s) regarding data collection and usage of any data collected. Each privacy policy required by this Section shall prominently and clearly disclose: (a) the nature and scope of the collection and use of non-PII on the applicable Application(s); (b) that non-PII may be shared with third parties for tailoring content to Visitors; and (c) that third parties may collect non-PII from Visitors for tailoring content to Visitors.
  9. Ownership: Kixer owns all intellectual property rights in the Widget and the Service other than Advertiser creative, which is owned by the Advertiser. Publisher owns or licenses all intellectual property rights in the Application(s). Neither Kixer, nor Publisher shall acquire any rights in or to the intellectual property of the other by the terms of the Agreement other than the limited right to make use of such intellectual property in connection with the Service.
  10. Indemnification:
    1. Except for that which Publisher indemnifies Kixer, Kixer shall indemnify, defend, save and hold harmless Publisher and its parent and subsidiaries, and its and their officers, directors, agents, affiliates, and employees, from and against any and all damages, awards, judgments, costs, expenses, and liabilities (including reasonable outside attorneys’ fees and costs) (“Losses”) resulting from, arising out of, or related to, a third-party claim, action, suit, proceeding or investigation (a “Claim”) asserting or alleging Kixer’s breach or alleged breach of any of Kixer’s representations or warranties set forth in paragraph 7.
    2. Publisher shall indemnify, defend, save and hold harmless Kixer and its parent and subsidiaries, and its and their officers, directors, agents, affiliates, and employees, from and against all Losses resulting from, arising out of, or related to, a Claim asserting or alleging (i) Publisher’s breach or alleged breach of any of Publisher’s representations, warranties or agreements, or (ii) that the Application(s) or any content available through the Application(s) violates a third party trademark, trade secret, copyright, patent or privacy right.
    3. The parties agree that in claiming any indemnification hereunder, the party seeking indemnification (the “Claimant”) shall (i) promptly notify the other party in writing of the Claim; (ii) grant the indemnifying party sole control of the defense (except that the Claimant may, at its own expense, assist in the defense); and (iii) provide the indemnifying party, at the indemnifying party’s expense, with all assistance, information and authority reasonably required for the defense of the Claim. In no event shall the indemnifying party enter into any settlement or agree to any disposition of the indemnified Claim(s), without the prior written consent of the Claimant.
  11. Limitation of Liability: IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST PROFITS OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES. KIXER’S CUMULTIVE LIABILITY RELATED TO THE SERVICE AND UNDER THE AGREEMENT SHALL NOT EXCEED THE ACTUAL AMOUNTS PAID BY KIXER TO PUBLISHER IN THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY.
  12. Confidentiality: Neither party will use or disclose to any third party the other party’s Confidential Information (hereinafter defined) except as necessary for the performance of the Agreement. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party required by law or pursuant to an order of a court or similar judicial or administrative body, provided that the receiving party required to make such a disclosure gives reasonable notice to the disclosing party so that the disclosing party may contest or limited the scope of such disclosure. “Confidential Information” consists of (a) any technical information or plans concerning the Service, Widget or any software or other technology of Kixer; (b) any other information disclosed by one party to the other party that is marked as confidential; and (c) the content of the Agreement. Confidential Information does not include information that: (1) is or becomes generally known to the public through no fault of or breach of the receiving party; (2) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (3) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (4) is obtained by the receiving party rightfully from a third party without restriction on use or disclosure.
  13. Termination: Publisher or Kixer may terminate the Agreement immediately in the event that the other party fails to remedy a material breach of the Agreement within five (5) days of its receipt of written notice thereof. Kixer may terminate the Agreement at any time upon three (3) days notice in the event it determines, in its reasonable discretion, that the performance of the Publisher’s Application(s) falls below acceptable quality or quantity levels.
  14. Notices: All notices permitted or required under the Agreement shall be in writing and shall be delivered by personal delivery, overnight delivery, first class mail (return receipt requested) or electronic mail (.pdf signatures accepted as originals) and shall be deemed given upon actual receipt, refusal of receipt, or upon acknowledgment of receipt of electronic transmission. Notwithstanding the foregoing, agreement to add additional Applications to Section 2 of the Work Order shall be permitted over email or through Kixer’s publisher interface and shall be deemed effective upon acknowledgment/approval from Kixer.
  15. Choice of Law/Venue: The Agreement will be governed by and construed in accordance with the laws of the State of New York excluding its conflicts of law principles. Any legal action or proceeding arising under the Agreement will be brought exclusively in the federal or state courts located in Dallas, Texas and the parties hereby irrevocably consent to personal jurisdiction and venue therein.
  16. Assignment: The rights and obligations of each party hereunder shall inure to the benefit of the respective successors of the parties hereto, provided that, except as expressly provided herein, the Agreement and any rights or obligations hereunder shall not be assigned or delegated without the prior written consent of the other party (which shall not be unreasonably withheld). Notwithstanding the foregoing, Kixer shall be entitled to assign the Agreement to any transferee or acquirer of the Service, including any acquisition of Kixer itself, without Publisher’s prior written consent.
  17. Force Majeure: Neither party will be responsible for any failure or delay in its performance under the Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, failures of the Internet, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God.
  18. Miscellaneous: The Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding the subject matter herein and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. The failure of either party to enforce strict performance by the other party of any provision of the Agreement or to exercise any right under the Agreement shall not be construed as a waiver of that party’s right. Any waiver, modification or amendment of any provision of the Work Order will be effective only if in writing and signed by a duly authorized representative of each party. Sections 6-7, 9-12 and 14 -18 of these Terms and Conditions shall survive the termination of the Agreement. The Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. These Terms and Conditions may be modified from time to time by Kixer, which such modifications shall apply to the Agreement following the date they are made. Any such modifications shall be noted in the updated Terms and Conditions section of Kixer.com and Publisher’s continued use of the Service shall be deemed an acceptance to any modified terms.