Terms and Conditions for Supply Partners

Effective Date: 2019-03-04

This Terms and Conditions for Supply Partners (the “Agreement”) is a legal agreement between you, a publisher, a developer or other inventory supply source operator (“you” or “your”), and TouchPal HK Co., Limited including its affiliates and subsidiaries (collectively, “we”, “us” or “our”) governing your access to and use of our supply side platform along with any revisions, updates and/or modifications thereto (the “Platform”) and any data, services and associated materials or media supplied with it (collectively, the “Services”).

BY CLICKING “ACCEPT” OR BY ACCESSING OR USING THE SERVICES, YOU AGREE THAT YOU HAVE READ THIS AGREEMENT CAREFULLY, FULLY UNDERSTOOD THE TERMS AND CONDITIONS CONTAINED HEREIN AND AGREE TO BE BOUND BY THE AGREEMENT. IF YOU DO NOT AGREE WITH ANY TERM OF THE AGREEMENT, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE SERVICES AND THE PLATFORM FOR ANY PURPOSE.

You and we will hereinafter be individually referred to as a “Party” and collectively as “Parties”.

1. REGISTRATION AND ACCOUNT

  • 1.1. To access and use the Services, you need to register for an account on the Platform. By creating an account, you agree to (a) provide us with accurate, effective and complete information that we deem necessary to provide the Services, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use the Services on your behalf, and (e) immediately notify us if you discover or otherwise reasonably suspect any security breaches related to the Services or your account. It is your own responsibility to provide and maintain all equipment and Internet service necessary to use the Services. We are not responsible for any claims, losses, damages, liabilities, costs, settlements or other expenses resulting from or in connection with your account or your information.
  • 1.2. By creating an account, you also consent to receive electronic communications from us (e.g., via email, text message or by posting notices on the Services) about password changes and other transactional and account information. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any statutory requirements in terms of form, including, but not limited to, that such notices be in writing.
  • 1.3. You can request to close your account by sending an email to pub_support@cootek.cn. Your account will be closed only after we confirm your closing request.

2. LIMITED LICENSE

  • 2.1. We hereby grant you a limited, revocable, non-transferable, non-exclusive and non-sublicensable license to access and use the Services solely for the purpose of monetizing the inventory and traffic of the products owned and operated by you which may include mobile applications, sites and other Internet-accessible destinations (the “Properties”). We will provide advertisements according to the rules of the Platform for your requests sent via the Platform but provide no assurance that your requests will be filled. All rights not expressly granted under this Agreement are expressly reserved to and retained by us.
  • 2.2. You shall be an independent publisher or a developer rather than an ad-network, and it’s your own responsibility to prove that you own and operate the Properties on which advertisements will be displayed. You agree to provide available advertising inventory, install and incorporate the technology, including any updates, fixes or patches provided by us from time to time, in the Properties, and maintain throughout the Term all software codes and tags necessary for us to provide the Services.
  • 2.3. You hereby grant, license or sublicense us and any applicable demand partners all the necessary rights and permissions to: (a) use, store, deliver, transmit and share your trademarks, trade names, logos, copyrights and other intellectual property provided during your use of the Services; (b) access, index, store and cache the requests you made via the Services; (c) manage and monitor your monetization of the Properties via the Services; (d) collect the end users’ data of the Properties via the Services; and (e) collect, store, process, use, transfer and share the end users’ data you delivered via the Services. You represent and warrant to us that you have the legal rights necessary to grant us the license described hereinabove, and that such Properties will not violate any term or condition contained herein.
  • 2.4. To learn more about how we collect, use, and disclose your information, please review our Privacy Policy.

3. APPROPRIATE USE OF THE PLATFORM AND THE SERVICES

  • 3.1. You agree to use the Services in accordance with all applicable local, state, national and foreign laws, treaties, regulations, governmental policies and rules. You agree not to breach any contract, infringe any third-party right or commit a tort, and you are solely responsible for your activities and your interaction with demand partners and the end users of the Properties while accessing and using the Services.
  • 3.2. In addition, without limitation, you shall not, directly or indirectly, do any of the following while using or accessing the Services:
    (a) rent, lease, sub-license, assign, sell, resell, transfer or make available the Services, or any portions thereof, to any third party or allow any such item (or the documentation relating thereto) to be accessed by or copied onto any third party’s device;
    (b) copy, reproduce, distribute, publicly perform or publicly display the Services, except as expressly permitted by us;
    (c) modify, adapt, vary, translate, reverse engineer, decompile, disassemble any aspect of the Services, create derivative works based on the Services in whole or in part, or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of the Services;
    (d) develop or use any third-party applications that interact with the Services without our prior written consent, including any scripts designed to scrape or extract data from the Services;
    (e) attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Services that you are not authorized to access;
    (f) use or attempt to use other’s account on the Services without authorization from that user or us, or create a false identity on the Services;
    (g) use the Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Services or that could damage, disable, overburden or impair the functioning of the Services in any manner;
    (h) remove any proprietary rights notices, markings, labels or any copyright management information (CMI) contained in, around or on the Services;
    (i) bypass, modify, defeat or circumvent the security technology used to protect the Services;
    (j) use the Services for benchmarking, gathering performance data, or competitive intelligence;
    (k) use the Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates this Agreement.
  • 3.3. You hereby acknowledge that you have independently evaluated the desirability of utilizing the Services and are not relying on any representation, guarantee or statement other than those set forth in this Agreement.
  • 3.4. If you violate any applicable laws, regulations, treaties, government orders, terms and conditions of this Agreement during your use of the Services according to our reasonable judgment, we reserve the right to limit your access to and use of the Services or close your account without incurring any liability to you, in our own discretion with or without notice, under which condition any unsettled balance of your Revenue will be forfeited.

4. PAYMENT TERMS

  • 4.1. If you fully perform and fulfil all the obligations, responsibilities and commitments provided in this Agreement, we agree to share with you the net advertising revenue that we actually collected from our demand partners in consideration of the sale of inventory on the Properties for distribution of advertisements via the Services less any and all the duties, taxes, levies, wire transfer fees, other governmental charges, refunds, ad serving fees, bad debt, chargebacks, expenses payable to any third party (if any) (the “Revenue”). You are solely liable for any and all duties, levies, taxes, wire transfer fees, governmental charges, fees and other deductions that may be imposed on either Party arising from or in connection with your use of the Services. In the event that we are required by any applicable law to withhold any tax from our payment to you, we are entitled to do the same and deduct such amount directly from our payment to you. The Revenue will be counted by the views, clicks, reach, engagement, activation and any other standard related to your distribution of advertisements according to your choice during your use of the Services.
  • 4.2. We will make you available a self-serve dashboard on the Platform when technically feasible, so that you can, by login in your account, check the advertising-related data including the delivery statistics and the Revenue amount with regard to your distribution of advertisements (collectively, the “Advertising-Related Data”) which may be delayed for one or two days, before that, you will have access to the Advertising-Related Data by daily served notice automatically sent to you via the Platform. The daily served Advertising-Related Data is for reference purpose only and may be adjusted from time to time according to the practical situation including but not limited to the deduction with respect to the Fraudulent Activity. You shall frequently check the data on your dashboard with that collected by you or by any third party on your behalf, and promptly raise any question or objection to us in written form within five (5) calendar days upon the release of such data displayed on your dashboard or sent to you via the Platform, failure of which, the Advertising-Related Data shall be deemed accepted and confirmed by you and you shall not challenge the same thereafter. We will consider seriously the question or objection properly raised by you and may adjust the same in our own discretion, but nevertheless, we reserve the right of final decision on the Advertising-Related Data.
  • 4.3. Payment Schedule

    The Revenue will be settled once per calendar month or any longer period per your request. All amounts payable under this Agreement will be paid in US Dollar via wire transfer. After the end of a calendar month, you need to submit a written request for the Revenue settlement on your earning dashboard on the Platform. Upon the receipt of your settlement request, we will send you a report stating the Advertising-Related Data and the Revenue due to you in the preceding calendar month(s). The data in our report is the one and only basis for the Revenue settlement and prevails under any circumstance. You need to issue a corresponding legitimate invoice to us after the receipt of our report. We will pay the Revenue to your account in accordance with our financial terms and this Agreement but not longer than sixty (60) calendar days upon the receipt of your duly issued invoice. If there’s a retention rate request or any other criteria for the distribution of advertisements, the aforesaid payment process may be postponed accordingly. We will not be liable for any delay in making any payment if (a) such delay is not attributable to us including but not limited to an event of Force Majeure or any other incident caused by any demand partner; or (b) we have made all commercially reasonable efforts to make the applicable payment on time, but an act or omission of a governmental authority (including tax clearance and foreign exchange control reviews) or a bank in charge of payment causes a delay in such payment.
  • 4.4. We will not be liable for any payment (a) based on the Fraudulent Activity as reasonably determined by us; or (b) in the event of your breach any term or condition of this Agreement, or other rules specified on the Platform (including this Agreement, Inventory and Traffic Policy and Privacy Policy). We reserve the right to withhold the outstanding balance of the Revenue due to the alleged breach of this Agreement pending our investigation for no longer than three (3) months. We also reserve the right to charge back, or directly offset from the Revenue generated in future, the Revenue that has been paid to you with respect to your breach of any term or condition of this Agreement, including but not limited to the Fraudulent Activity, and you shall pay a liquidated damage for the amount that shall be returned or offset at the rate of 0.05% per day from the actual payment date until the date of return or offset. In addition, you shall also be liable for any damages and costs incurred by us (including but not limited to attorneys’ fees and arbitration fees).
  • 4.5. In the event of your payment request of the Revenue is less than a specific amount set by us which may be seen on your dashboard (the “Threshold”), your request will be postponed until the amount of the Revenue payable to you has reached the Threshold, and we are entitled to defer the payment of the Revenue and roll over the balance into the following payment until the Threshold is met (as calculated for all cumulative unpaid Revenue). However, all the undisputed Revenue will be paid in full subject to the terms and conditions of this Agreement whether or not the amount of the cumulative unpaid Revenue has reached the Threshold when you decide to close your account and provide us with an explicit notice to demonstrate the same.
  • 4.6. You agree that we will have no liability whatsoever to pay any Revenue to you unless we receive full payment from our demand partners. In the event a demand partner does not pay us within one hundred and twenty (120) calendar days when the amount is due, then the amount will be declared an uncollectible amount and no Revenue will be due or payable to you in connection therewith.
  • 4.7. You agree to accurately complete and timely provide to us any form or documentation that we determine necessary for us to verify your qualification and credit, make assessment of your capability of performance and make payment to you. You shall update your information by a written notice to us in a timely manner if any such information changes. You hereby represent that any of your information provided to us is complete and accurate, and you have the requisite authority to provide such information. You shall also provide us with abundant proof we deem necessary when we investigate any of your breach of this Agreement, failure of which or your negligence in doing so, your will bear any adverse consequence arising therefrom.
  • 4.8. We reserve the right to offset from the Revenue any amounts that are past due and remain uncollected by us from you in connection with any other transaction between both Parties.

5. INVENTORY AND TRAFFIC POLICY

  • 5.1. As between you and us, you shall be solely responsible for, and in no circumstance are we liable for, the inventory and traffic from the Properties. You shall comply with the restrictions set forth in the currently effective Inventory and Traffic Policy, any violation of which will be deemed as “Fraudulent Activity”. We take a serious stance against the Fraudulent Activity, so we may adopt various approaches to detect the Fraudulent Activity and to take all actions we deem fit.
  • 5.2. We have the right but no obligation to determine the validity of any inventory and traffic in our own reasonable discretion using industry-recognized third-party tools and/or our internal tools and reporting. We have no obligation to make payment with respect to any Fraudulent Activity. We may send you a warning notice if we find you are involved with the Fraudulent Activity and stop providing the Services to you at any time. You shall correct your Fraudulent Activity in a timely manner upon the receipt of our warning notice (including by email or by message on the Services). If you fail to make the aforesaid remedies on time or repeatedly take the Fraudulent Activity, we are entitled to, in our own discretion, limit your access to the Platform, stop providing the Services to you, or even close your account immediately with or without notice.

6. DATA COMPLIANCE

  • 6.1. You will have access to end users’ data such as but not limited to Google advertising ID (GAID), Android ID, Identifier for Advertising (IDFA), end users’ location information and device information during your distribution of advertisements via the Services, and may deliver end users’ data through the Services, under which circumstance, you shall (a) establish and maintain a mechanism to abide by applicable laws and regulations, international conventions and practices governing data protection (such as EU Directive 95/46/EC and the General Data Protection Regulation (2016/679); (b) keep end users’ data strictly confidential; (c) have obtained legally sufficient consent from end users regarding the scope of your collection, storage, processing and use of end users’ data and sharing with us and connected demand partners such end users’ data for the purpose of providing personalized advertisements in the Properties, and deliver the evidence of such end users’ consent when requested by us or by any data supervisory authorities; (d) have a clearly labeled and easily accessible privacy policy in your Properties that provides end users with clear and comprehensive information about cookies, device-specific information, location information and other information stored on, accessed on, or collected from end users’ devices, including information about end users’ options for cookie management; (e) disclose to end users your privacy policies, our privacy policy and the fact that you use third-party advertising exchange platform to serve advertisements on the Properties, in which case, you, we or our demand partner may, directly or indirectly, collect, transfer or use information about end users’ visits to the sites to display advertisements more tailored to end users’ interests; (f) promptly erase, and promptly notify us to erase end users’ data upon the receipt of any end user’s request to withdraw his/her consent or erase his/her personal information; and (g) notify us without delay and, in any event, within twenty-four (24) hours after the occurrence of a physical or technical incident relating to the security of end users’ data having led to any data breach or any security breach and take, as soon as possible, appropriate measures in accordance with applicable laws and communicate the existence of the data breach to end users and the data supervisory authority.
  • 6.2. You represent and warrant that (a) none of the Properties you used for monetization under this Agreement is directed at children under age thirteen (13) through which you knowingly collects “personal information” (as that term is defined by the applicable child protection laws such as the Children’s Online Privacy Protection Act (“COPPA”) in the U.S.A.) from children that are under age thirteen (13); and (b) you will neither collect information from end users known to be under age thirteen (13), nor transmit to us any personal information about or relating to an individual under age thirteen (13). You shall be sole responsible for your determination of whether the Properties are directed at children under age thirteen (13) and whether the end users’ information you collected are personal information of children under age thirteen (13).

7. TERMINATION

  • 7.1. We may change the Services in whole or in part, discontinue offering the Services and suspend or terminate your right to use the Services at any time, in the event that you breach any term or condition of this Agreement, for any reason, or for no reason at all, in our sole discretion and without liability. We are not liable for any claims, losses, damages, liabilities, costs, settlements and other expenses resulting from our termination of the Services unless otherwise prescribed in the Agreement.
  • 7.2. All licenses and other rights granted by either Party to the other under this Agreement will immediately cease upon (a) our termination of your rights as a user to the Services, (b) our termination of the Services, or (c) the close of your account.
  • 7.3. Upon closing your account, your right to access to and use the Services will immediately cease and you shall remove all our code from the Properties. We reserve the right to erase your account information and/or any data collected during your use of the Services such as end users’ data.
  • 7.4. Any term, by its nature, would continue beyond the termination of this Agreement, shall survive the termination of this Agreement for any reason.

8. INTELLECTUAL PROPERTY

  • 8.1. We retain all rights, title and interest in and to all intellectual property rights (whether or not they’re registered anywhere in the world) and moral rights of the Platform and the Services, including without limitation the text, graphics, images, data, logos, trade secrets, designs, trademarks, patents, copyrights, goodwill, and the application, modification and derivation thereof). Except for the rights explicitly granted under this Agreement, we reserve all other rights in and to the Services and the Platform. You shall not assert, take any action to jeopardize, limit or interfere in any manner with, any proprietary rights in or to our intellectual property or any element, derivation, adaptation, variation or name thereof.
  • 8.2. We respect the intellectual property rights and other rights contained in the Properties and agree not to use them for any purpose other than providing the Services. You shall respect the intellectual property rights and other rights contained in the Platform, the Services and the materials provided by demand partners and agree not to use them in violation of this Agreement, any applicable laws, treaties, regulations, governmental policies or rules.

9. DISCLAIMER OF WARRANTIES

  • 9.1. BOTH THE PLATFORM AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE HEREBY DISCLAIM, WITH RESPECT TO THE PLATFORM AND/OR THE SERVICES (INCLUDING ITS CONTENT, TECHNOLOGY AND FUNCTION), ANY AND ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY (IF ANY) WARRANTIES OR CONDITIONS OF OR RELATED TO: TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ADAPTION WITH OTHER HARDWARE OR SOFTWARE, NONINFRINGEMENT, COURSE OF DEALING OR PERFORMANCE, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS.
  • 9.2. WE MAKE NO REPRESENTATIONS CONCERNING, AND DO NOT GUARANTEE, (A) THE SECURITY, ACCURACY, RELIABILITY, EFFECTIVENESS, NON-INTERRUPTION, TIMELINESS AND PERFORMANCE OF THE PLATFORM AND/OR THE SERVICES, (B) THAT THE PLATFORM AND/OR THE SERVICES WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED, (C) THAT THE ADVERTISEMENTS, THE PRODUCTS AND/OR SERVICES PROMOTED WITHIN THE ADVERTISEMENTS, ANY OTHER MATERIALS PROVIDED BY DEMAND PARTNERS CONNECTED TO THE PLATFORM IS LEGITIMATE, SUBJECT TO PREVAILING INDUSTRIAL POLICIES AND STANDARDS OR SATISFACTORY TO YOU, ALTHOUGH WE HAVE MADE THE CORRESPONDING TERMS AND CONDITIONS AGAINST THEM. NO NOTICE OR INFORMATION PROVIDED TO YOU BY US WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT.

10. LIMITATION OF LIABILITY

  • 10.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY OR CONTINGENT DAMAGES, FRUSTRATED EXPENSES, DAMAGES FOR LOSS OF BARGAIN, LOSS OF EXPECTATION OR BUSINESS OUTCOME, LOSS OF USE, LOSS OF DATA, LOSS OF PRODUCTION OR PROFITS, OR CLAIMS OF ANY KIND (INCLUDING BASED ON CONTRACT, TORT AND GROSS NEGLIGENCE), ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE PLATFORM AND/OR THE SERVICES WHETHER OR NOT THE DAMAGES ARE FORESEEABLE AND WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS IN ADVANCE.
  • 10.2. IF YOU ARE DISSATISFIED WITH THE PLATFORM, THE SERVICES, OR THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP USING THE SERVICES OR INFORM US TO CLOSE YOUR ACCOUNT. IF THE FOREGOING IS NOT ENFORCEABLE AGAINST YOU, IN NO EVENT WILL OUR CUMULATIVE LIABILITY TO YOU, WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE REVENUE DUE TO YOU WITHIN ONE (1) MONTH BEFORE SUCH CLAIM HAPPENS.
  • 10.3. YOU ACKNOWLEDGE THAT THE FOREGOING LIMITATIONS ARE ESSENTIAL ELEMENTS OF THE AGREEMENT BETWEEN BOTH PARTIES AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE SERVICES PROVIDED UNDER THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

11. CONFIDENTIALITY

  • 11.1. You shall not disclose any of our Confidential Information without our prior written consent. For purposes hereof, “Confidential Information” includes: (a) all software in source code and/or object code forms, documentation, program libraries, program listings, methods of processing, technical processes, operational methods, tools, trade secrets, client lists, methodologies, financial information (including information regarding sales and profits) and training materials relating to the Platform and/or the Services; (b) any Advertising-Related Data you have access to during the use of the Services; (c) any other information made available to a Party that is marked proprietary or confidential or would normally be considered proprietary or confidential under the circumstances in which it is presented; (d) any non-public information available from demand partners connected to the Platform; and (e) any other information, whether disclosed orally, visually, in writing or by other means, made available to the other Party without written indication of its confidential or proprietary nature, but is later designated as Confidential Information by such Party, provided that the disclosing Party make such designation in writing to the receiving Party within thirty (30) days after the disclosure and a brief description to identify the information.
  • 11.2. Confidential Information does not include the information that the receiving Party can demonstrate by competent written proof: (a) was already known to it, other than under an obligation of confidentiality, at the time of our disclosure; (b) was generally available to the public or otherwise part of the public domain at the time of the disclosure of such Confidential Information; (c) became generally available to the public or otherwise part of the public domain after the disclosure other than through any of act or omission by the receiving Party in breach of this Agreement; (d) was disclosed to it by a third party who has a legal right to make such disclosure without confidentiality restrictions; (e) was independently discovered or developed by it without access to or aid, application, use of Confidential Information, as evidenced by a contemporaneous writing proof; or (f) was disclosed under operation of applicable law, government regulation, treaty or court order, provided that prior to the disclosure the receiving Party has given the disclosing Party a written notice and a reasonable opportunity to secure protection of such information.
  • 11.3. You shall not use any of our Confidential Information for any purpose not expressly permitted under this Agreement unless agreed to in a separate written agreement signed by our authorized representative. You may disclose our Confidential Information only to your employees, contractors and consultants (i) who have a need to know such Confidential Information for purposes of exercising your rights or performing your obligations under this Agreement, and (ii) who are under a binding and enforceable written agreement or professional duty of confidentiality no less restrictive than your duty hereunder. You shall protect our Confidential Information from unauthorized use, access, or disclosure at least in the same manner as you protect your own confidential or proprietary information of a similar nature but with no less than a reasonable care.
  • 11.4. Upon the termination of your use of the Services or at any time we may so request, you shall either (a) return to us all our Confidential Information in your possession or control; or (b) destroy and permanently erase all our Confidential Information.
  • 11.5. You hereby acknowledge that unauthorized disclosure or use of our Confidential Information may cause irreparable harm and significant injury for which monetary damages would be an inadequate remedy. Therefore, we are entitled to an injunctive relief upon an unauthorized disclosure or threatened disclosure of our Confidential Information, without having to prove irreparable harm or posting a bond. Without limiting the foregoing, you shall advise us immediately in the event that you learn or have reason to believe that any person or entity which has had access to our Confidential Information has violated or intends to violate the Agreement and shall reasonably cooperate with us in seeking an injunctive relief against any such person or entity. This provision shall not in any way limit any other remedies that may be available to us at law or in equity.

12. REPRESENTATIONS AND WARRANTIES

  • 12.1. You hereby represent and warrant that: (a) you are duly organized and validly existing in good standing under the applicable laws and regulations; (b) the Agreement constitutes your valid and binding obligation and is enforceable against you in accordance with the terms and conditions of the Agreement; (c) you have the right, power and authority to enter into and perform your obligations under the Agreement; (d) your performance under the Agreement shall comply with all applicable laws, treaties, regulations and rules (including but not limited to all applicable anti-bribery, anti-corruption, anti-money laundering laws); and (e) the execution and delivery of the Agreement and your performance do not and will not violate, conflict with or constitute a breach of or default under, or require any consent pursuant to your organizational documents, bylaws or other governing instruments, any order, decree, judgment or award of any court, regulatory body or other tribunal.
  • 12.2. You further represent and warrant that: (a) unless otherwise authorized in this Agreement, you will not acquire or use the advertisements for any purpose other than the execution of this Agreement without prior written consent by demand partners; (b) you shall have any and all license and authorization to fulfill the performance of this Agreement and to make all the license or sublicense set forth hereinabove; (c) all your Properties are legitimately owned and operated by you and do not infringe upon intellectual property rights of any third party, promote any illegal or inappropriate content or violate any applicable laws regarding the protection of consumer rights and interests; (d) all information contained in your request shall be true and accurate in all respects, including referring URL and IP address; and (e) you shall comply with all the requirements and criteria under this Agreement and/or the rules on the Platform.
  • 12.3. You shall indemnify, defend and hold harmless us and our directors, officers, shareholders, members, authorized representatives, employees, agents and our demand partners from and against any and all claims, proceedings, causes of action, demands, liabilities, damages, losses, costs, settlements and other expenses of whatsoever kind or nature (including but not limited to, reasonable attorneys’ fees and expenses) arising out of or relating to (a) your access to, use of or conduction in connection to the Platform and/or the Services; (b) the Properties, the inventory and traffic of the Properties; (c) your breach or alleged breach of any term and condition of this Agreement; (d) any activity related to the registration of your account, or any action or inaction through your account including but not limited to negligent or wrongful conduct; or (e) your infringement of any third party right, including but not limited to, any intellectual property right, publicity, confidentiality, property or privacy right. You shall not settle, compromise or consent to the entry of any proceeding or otherwise seek to terminate any pending or threatened claim in respect of which we are entitled to indemnification hereunder (whether or not the we are a party thereto), without our prior written consent.

13. ANTI-BRIBERY AND ANTI-CORRUPTION

  • 13.1. You shall comply with and make your directors, officers, shareholders, authorized representatives, employees and agents (collectively, “Your People”) comply with all applicable laws, regulations and other governmental requirements concerning anti-bribery and anti-corruption.
  • 13.2. You shall not, and make Your People not, perform in the way that may harm our legitimate rights and interests in order to obtain or keep the business relationship between both Parties. The prohibited actions include but not limited to demanding, soliciting, offering, giving, promising to give the following benefits or interests, directly and indirectly, to any person from or on behalf of us or to such person’s associate(s):
    (a) cash, electronic prepaid card, red envelope, security, share, stock, payment instrument and any other cash-equivalent;
    (b) luxurious gift, membership, real-estate and any kinds of property;
    (c) banquet, travel and expensive entertainment in any form;
    (d) the opportunity to fulfill personal purposes such as various conveniences and qualifications, a job offer, scholarship or a school offer;
    (e) benefits or interests that beyond general business practice or the limits legally allowed.
  • 13.3. You shall disclose or report to us as soon as you find any of Your People or our employees engaged in bribery and corruption behaviors aforesaid by sending an email to compliance@cootek.cn>.

14. GOVERNING LAWS AND JURISDICTION

  • 14.1. THIS AGREEMENT AND OUR RELATIONSHIP WITH YOU SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE PEOPLE’S REPUBLIC OF CHINA AND THE CHOICE OF LAW RULES OF THIS OR ANY OTHER JURISDICTION SHALL NOT APPLY.
  • 14.2. ANY AND ALL DISPUTES ARISING OUT OF, UNDER, OR IN RELATION TO THE AGREEMENT SHALL BE SETTLED EXCLUSIVELY THROUGH ARBITRATION CONDUCTED IN SHANGHAI INTERNATIONAL ARBITRATION CENTER (SHIAC) IN ACCORDANCE WITH ITS CURRENT EFFECTIVE ARBITRATION RULES. THE ARBITRATION SHALL TAKE PLACE IN SHANGHAI, CHINA. THE NUMBER OF ARBITRATOR SHALL BE ONE (1). THE WRITTEN AWARD OF THE ARBITRATOR SHALL BE FINAL AND BINDING ON THE PARTIES. EITHER PARTY MAY APPLY TO A COURT OF COMPETENT JURISDICTION FOR ENFORCEMENT OF SUCH AWARD, PROVIDED HOWEVER, THE ARBITRATOR SHALL NOT HAVE THE POWER TO COMMIT ERRORS OF LAW OR LEGAL REASONING, AND THE AWARD MAY BE VACATED OR CORRECTED ON APPEAL TO A COURT OF COMPETENT JURISDICTION FOR ANY SUCH ERROR.

15. MISCELLANEOUS

  • 15.1. Independent Contractors. The relationship of both Parties is that of independent contractor, and nothing in this Agreement: (a) gives either Party the power to direct or control the day-to-day activities of the other; (b) makes the Parties partners, joint ventures, co-owners, or participants in any joint undertaking; or (c) allows either Party to create or assume any obligation on behalf of the other.
  • 15.2. Entire Agreement and Amendment. The Agreement, together with any other policies displayed on the Platform, constitutes the entire agreement of both Parties related to your use of the Services, supersedes all prior or contemporaneous communications, understandings, proposals, and agreements (whether written or oral) regarding the subject matter of this Agreement. We’ll provide notice on the Platform if we make material changes to the Agreement, policies, guidelines or other terms referenced in or incorporated by the Agreement. The changes will not apply retroactively. Your continued use of the Services, following notice of the changes to the Agreement, our terms, policies or guidelines, constitutes your acceptance of our amended Agreement, terms, policies or guidelines.
  • 15.3. Severability. If any provision of this Agreement becomes, or is held to be, illegal, invalid or unenforceable in whole or in part, then such provision or part shall be enforced to the maximum extent permitted under applicable law, and the legality, validity and enforceability of the remainder shall not be affected. The invalid or unenforceable provisions of the Agreement shall be replaced by new provisions that are valid and enforceable to the maximum extent allowed under applicable law.
  • 15.4. Assignment; Subcontracting. You shall not assign this Agreement or assign any rights or delegate any duties under this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement or assign any rights or delegate any duties under this Agreement at any time without restriction. Any attempt to assign this Agreement other than in accordance with this provision will be void and of no effect.
  • 15.5. Force Majeure. We are not responsible for any failure or delay in our performance under this Agreement due to causes beyond our reasonable control, including, but not limited to, war or other national emergency, strikes, pandemics, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, fire, explosion, flood or other acts of God.
  • 15.6. Interpretation. In this Agreement, unless expressly stated otherwise: (a) headings are for convenience only and will not be taken into consideration in the interpretation of the Agreement; (b) references to any statute or statutory provision includes any amendment, replacement or re-enactment thereof for the time being in force and includes any ordinances, by-laws, regulations and other statutory instruments issued thereunder; (c) no rule of interpretation applies to our disadvantage on the basis that we drafted the Agreement or any part thereof; (d) the words “including”, “includes”, “such as” and any variants of those words, will be read as if followed by the words “without limitation”; and (e) the original English version of this Agreement is the controlling version and will supersede any translations thereof.
  • 15.7. No waiver. Our right may only be waived by us in writing. A waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again.

If you have other question or suggestion concerning the Platform, the Services and this Agreement, please contact us by sending an email to pub_support@cootek.cn.