exchange service terms
the ion exchange is a media & data marketplace provided by Infomo Global Ltd. the exchange allows advertisers and publishers to trade media and data over its exchange and is governed by terms as defined below. the terms are periodically updated, which all partners must refer to on a regular basis.
1. introduction and acceptance
by creating a ion exchange account, publisher agrees that it has the authority to be bound by these terms of service (“terms”). publisher includes website publishers (mobile, web, transactional) and applications (mobile, web, transactional)
ion exchange,. (“ion exchange”) owns and operates certain services (“services”) that (a) facilitate the delivery and insertion of demand partner advertisements (“ads”) through publisher properties on end-users’ devices
publisher and ion exchange agree that ion exchange may deliver ads to media ad inventory located on the publisher properties. publisher will make the publisher properties available pursuant to these terms and may facilitate such actions or transactions to enable publisher to receive payments for ads delivered on the publisher properties. for these purposes, publisher may use the services in connection with the sale of such media ad inventory. ion exchange and publisher are each a “party” and collectively “parties” to these terms.
“advertisement” or “ad” means an advertisement represented by text, graphics, audio, video, or rich media such as movement, animation, flash, or other promotional activity provided by advertisers.
“advertiser” means the third-party person or entity providing ads, who has contracted with ion exchange to purchase, or to have ion exchange purchase on its behalf, media ad inventory for the purpose of displaying ads on the publisher properties.
“end-user information” means any non-personally identifiable information about an end-user who visits the publisher properties. non-personally identifiable information includes, but is not limited to: the type of device used by an end-user, ip addresses, the ads delivered to an end-user, when such ads were delivered to end-users, and which ads an end-user clicked, as well as any precise geolocation data (e.g., latitude/longitude coordinates), where publisher permits such collection.
“end-user” means any visitor accessing the publisher properties through a wireless device.
“impression” means a single instance of displaying an ad to a bona fide end-user on such end-user’s device. “impression” excludes any display of ads obtained by fraud or other illegal conduct, where an ad has been viewed in exchange for consideration or monetary incentive, and/or by mechanical or other technical means where there is no bona fide, human end-user that actually views the display on their device.
“media ad inventory” means the advertising space on the publisher properties that publisher makes available for the display of ads on an end-user’s wireless device when visiting the publisher properties.
“publisher policies” means the policies applicable to publisher and the publisher properties, available at www.infomo.com/privacy which may be amended by ion exchange from time to time.
“publisher properties” means the mobile websites and/or mobile applications owned or managed by publisher and where the media ad inventory is located.
“third-party demand partner” means any third-party demand partner with which publisher has a direct,
2. delivery; license limitations; ownership
subject to these terms, ion exchange may deliver or make available to publisher certain ion exchange ad services that enable publisher to sell media ad inventory to, and receive ads from, third-party advertisers for the placement of such ads on the publisher properties.
2.2 license limitations.
publisher shall not reverse engineer, decompile, or disassemble the ion exchange ad services. further, except as expressly permitted in these terms, publisher shall not (a) copy, modify, or adapt the ion exchange ad services, or (b) rent, lease, sublicense, sell, assign, loan, or otherwise transfer the ion exchange ad services.
if ion exchange provides publisher a new version or an update to the ion exchange ad services (“update”), publisher shall promptly cease use of the prior version of such ion exchange ad services, and incorporate and use the update in connection with the services.
the license granted in these terms does not constitute a transfer of ownership or sale of the services or the ion exchange ad services, or any other proprietary rights of ion exchange, including all intellectual property rights in any of the foregoing (collectively referred to as “ion exchange property”). except for the license granted above, ion exchange retains all right, title, and interest in and to the ion exchange property. publisher agrees not to remove, alter, or obscure any proprietary notices, including copyright notices, on any portion of the services.
3.1 ad delivery.
publisher acknowledges and agrees, and publisher shall disclose to its end-users, that third parties such as ion exchange have the right to (a) serve and deliver ads to end-users’ wireless devices as part of the services and (b) access, index, and cache requests made from the publisher properties to the services. publisher shall indemnify and hold ion exchange harmless from any losses and liabilities arising out of publisher’s failure to comply with this section.
as between ion exchange and publisher, ion exchange shall have the sole right to negotiate and conclude agreements with advertisers and ad networks for the delivery of ads to end-users’ wireless devices in connection with the services, and publisher shall not interfere with such ion exchange business in any way.
4. content; third-party terms; international compliance; authorization to sell
4.1 publisher policies
publisher and the publisher properties shall strictly comply with the publisher policies and shall not contribute, submit, or make available through the services, or use the services in connection with, any content that would violate the publisher policies. ion exchange reserves the right to discontinue publisher’s access to the services if ion exchange determines, in its sole discretion, that publisher is not in compliance with this section.
publisher acknowledges and agrees that, in addition to the remedies to which ion exchange is entitled under section 11 below, for failure to comply with the publisher policies, ion exchange reserves the right at all times in its sole discretion to: (a) retain any and all accrued payments or revenues of the respective publisher for the months of the occurrence of such failures up to six (6) months, and (b) immediately block publisher and subsequently discontinue publisher’s access to the services.
4.2 third-party terms
publisher (a) will comply with any third-party terms and conditions applicable to the development and distribution of any publisher properties operating on the android, ios, or any other operating systems supported by ion exchange (collectively, “third-party terms”) and (b) will not cause ion exchange to be in violation of any such third-party terms.
4.3 international compliance
publisher shall not use the services to serve ads from, or target ads to, countries, entities, or individuals subject to united states trade sanctions or other united states export control laws. publisher shall not use the services in connection with any publisher properties that are distributed or otherwise made available to any countries, entities, or individuals subject to united states trade sanctions or other united states export control laws. further, publisher represents and warrants that publisher (a) is not located in, under the control of, or a national or resident of any country to which the united states has embargoed goods or services, (b) is not identified as a “specially designated national” by the office of foreign assets control, (c) is not placed on the united states commerce department’s denied persons list, and (d) shall not access or use any of the services if any applicable laws in publisher’s country prohibit publisher from doing so in accordance with these terms.
4.4 third-party services
4.5 authorization to sell media ad inventory
publisher will declare ion exchange as an authorized seller of media ad inventory in the ads.txt file(s) and/or app-ads.txt file(s) associated with the publisher properties, per the official guidance provided by the iab technology laboratory. ion exchange reserves the right to require an update to such files from time to time and publisher agrees to reasonably comply with any such requests by ion exchange. for the avoidance of doubt, the requirements with respect to ads.txt shall apply to the extent the publisher properties include mobile websites and the requirements with respect to apps-ads.txt shall apply to the extent the publisher properties include mobile applications.
5. data privacy
5.1 publisher privacy compliance: general
publisher shall obtain all legally required consents, licenses, and permissions, including applicable opt-ins and opt-outs, from end-users for any data collection, use, disclosure, and transfer resulting from the placement of ads hereunder. publisher’s collection, use, disclosure, and transfer of end-user information hereunder shall comply with all applicable laws, rules, and regulations.
5.3 children’s privacy
publisher represents and warrants to ion exchange that: (a) it complies with the children’s online privacy protection act (“coppa”) in the collection and use of “personal information” (as defined by coppa) from children under 13 years old; (b) it does not and will not transmit or otherwise make available to ion exchange any publisher properties or media ad inventory directed to children under 13 years old; and (c) it does not and will not transmit or otherwise make available to ion exchange any publisher properties, media ad inventory, information, or other data related to or from any end-user that is a child (i) under the age of 13, if the child is located in the u.s., or (ii) under the age for valid consent as defined by the laws or regulations of the given jurisdiction in which the child resides, if the child is located outside the u.s.
5.4 transfer of information
in the event that ion exchange or a portion of ion exchange’s assets is acquired by another company, the information collected about publisher and end-users through the services may be one of the transferred assets.
5.5 data ownership & processing
5.6 payment .
payment of the net revenue share shall be made in inr. if payments by advertisers are made in a currency other than usd, or a non-u.s. currency is involved in the calculation of the net revenue share, then ion exchange may convert such payment to usd using the foreign exchange currency rates as published by https://www.oanda.com/us-en/ at the time of the conversion.
5.7 costs; taxes
except as otherwise expressly provided hereunder, each party will be responsible for all costs and expenses incurred by such party in connection with the performance of its obligations under these terms. publisher shall pay all applicable taxes or fees imposed by any government authority in connection with publisher’s use of the services.
5.8 no fraudulent clicks or impressions; non-viewable; denied
publisher shall not, and shall not authorize others, to generate fraudulent clicks or impressions on any ads served on the publisher properties as part of the services, whether generated manually or by use of a device or other automated process. no payment shall be made hereunder in connection with (a) any clicks or impressions that have been generated via fraud or other illegal conduct, or generated manually or via the use of a device, automated process, or other technical means where there is no bona fide end-user that actually views or performs the click on the ads served on their wireless devices or (b) any impressions commingled with fraudulent impressions or fraudulent clicks as described in 6.5(a) (collectively “fraudulent”). further, no payment shall be made hereunder in connection with (i) any clicks or impressions that do not meet the viewability standards set forth in the current rules or guidelines of the media rating council (mrc) of the interactive advertising bureau (iab), provided that where no such rules or guidelines are in place, the minimum viewability standard required for payment shall be at least fifty percent (50%) of pixels in view for one consecutive second for a non-video, i.e., display, ad, and two consecutive seconds for a video ad (“non-viewable”), or (ii) any clicks or impressions for which payment is denied by an advertiser (“denied”). failure to comply with this section shall be deemed a material breach of these terms and ion exchange reserves the right to withhold payment if it considers that publisher has engaged in activity that is in violation of this section or of these terms. in the event that publisher has already received payments from ion exchange for fraudulent, non-viewable, or denied actions, ion exchange shall receive credit from future earnings or refunds from publisher.
5.9 forfeiture of payment
to ensure proper payment, publisher is solely responsible for providing and maintaining accurate contact and payment information associated with publisher’s account. failure to comply shall result in delay or forfeiture of publisher’s due payment, as follows: publisher shall forfeit payment (a) after ion exchange has been unable to pay publisher due to inaccurate contact or payment information for a period of six months, or (b) after three consecutive unsuccessful payment attempts at publisher’s given paypal or bank account(s).
publisher represents and warrants that (a) publisher is an authorized user of the ad network account, (b) publisher has all necessary rights to authorize ion exchange to access, collect, and use publisher’s ad network account to provide network reporting, and (c) ion exchange’s access, collection, and use of the information from publisher’s ad network account shall not violate any third-party agreements or policies. publisher may only use network reporting for internal business purposes solely in connection with the services. publisher understands and acknowledges that network reporting is provided by the third-party mediation ad networks and ion exchange shall not be responsible for discrepancies in reporting.
6.1 access to services
publisher agrees that ion exchange has no obligation to allow publisher access to the services or any part thereof, and may refuse to allow access to the services to any publisher at any time. further, ion exchange may modify, suspend, or discontinue the services or publisher’s access to the services, including the availability of ads or other content, at any time and without notice or liability. publisher’s use of the services is subject to the publisher policies, which are hereby incorporated by reference. ion exchange reserves the right to amend the publisher policies at any time, and ion exchange shall provide prior notice to publisher of such amendments. publisher’s use of the services indicates the assent to and acceptance of the revised publisher policies.
without limiting anything set forth in section 7.1, these terms shall become effective upon acceptance by publisher as described in section 1.1 and shall remain in full force and effect until terminated in accordance with the terms herein.
6.3 termination for cause
either party may terminate these terms for any reason or no reason, and at any time, upon thirty (30) days’ prior written or electronic notice, provided that the effective date of such termination shall be the last day of the calendar month in which the 30th day of such notice falls.
6.4 termination for breach
either party may terminate these terms in the event of a material breach of these terms by the other party, provided that the breach has not been cured within thirty (30) days of the notice from the non-breaching party, except that ion exchange may terminate these terms immediately if it believes in good faith that publisher is in violation of any law, any right held by a third party, or ion exchange’s publisher policies, or is engaged in any other practices that ion exchange reasonably deems may harm ion exchange’s reputation if made public.
6.5 effect of termination
except as otherwise provided in this section, all rights and obligations of the parties under these terms shall terminate upon the expiration or termination of these terms, including all licenses granted pursuant to these terms (but not any ownership rights recognized herein). publisher shall remove from its services, websites, and marketing literature all references to ion exchange or the services. publisher shall also cease all use of the ion exchange ad services and destroy or return all of ion exchange’s materials in its possession.
notwithstanding the foregoing, the following shall survive termination or expiration of these terms: section 2.3 (license limitations), section 7.5 (effect of termination), section 8 (confidential information), section 9 (publisher representations and warranties), section 10 (warranty disclaimer), section 11 (indemnification), section 12 (limitation of liability), section 13 (miscellaneous), and any payment obligations of a party that accrue prior to the effective date of such termination or expiration.
7. confidential information
7.1 confidential information
during the term of these terms and for three (3) years after the termination or expiration of these terms, neither party shall make use of the other party’s confidential information (as hereinafter defined) for purposes other than the performance of its obligations under these terms. each party shall protect the other party’s confidential information by using the same degree of care as it uses to protect its own information of a like nature, but no less than a reasonable degree of care. the receiving party shall only disclose the confidential information to its employees, consultants, and subcontractors who have a need to know such confidential information in order to perform its obligations under these terms. “confidential information” shall mean all information of either party not generally available to the public which is provided to the receiving party by the disclosing party or which the receiving party has access to or discovers in the performance of these terms, including without limitation all information relating to a party’s products, business, and operations (including without limitation business plans, financial records, customers, suppliers, vendors, products, costs, sources, strategies, inventions, procedures, forecasts, sales materials and data, technical advice or knowledge, contractual agreements, pricing, product specifications, trade secrets, procedures, distribution methods, inventories, marketing strategies, algorithms, designs, drawings, worksheets, blueprints, manufacturing processes, computer programs and systems, and know-how or other intellectual property of a party and its affiliates that may be at any time furnished, communicated, or delivered by a party to the other party, whether in oral, tangible, electronic, or other form), and any other information that a reasonable person would believe to be confidential or proprietary in nature given the circumstances of disclosure. all confidential information shall remain the property of the disclosing party.
confidential information shall not include any information that: (a) was rightfully known to a party prior to disclosure by the other party; (b) is rightfully obtained by a party from a third party lawfully in possession of such information without restriction on use or disclosure; (c) is made available by the disclosing party to the public without restrictions on use or disclosure; (d) is independently developed or learned by the receiving party through legitimate means; or (e) is disclosed pursuant to any applicable laws, regulations, or order of a court of competent jurisdiction, or by the receiving party in defence of a claim against the receiving party. each party will provide reasonable prior written notice to the other party, unless prohibited by applicable law, if it is required to disclose any of the other party’s confidential information under operation of law, and such disclosure shall not constitute a breach of these terms.
8. publisher representations and warranties
publisher warrants and represents that (a) publisher owns or is authorized to use the publisher properties in connection with the services, (b) publisher shall comply with all applicable laws, rules, regulations, and industry self-regulations in connection with publisher’s use of the services and/or publisher’s performance of its obligations under these terms, (c) publisher shall not infringe any third-party intellectual property rights or privacy rights, and (d) publisher shall not spread malicious code, viruses, trojan horses, malware, spyware, or similarly harmful measures to the services or end-users.
9. warranty disclaimer
the services, the site, and all contents available or accessible through the services and the site are provided on an “as is” and “as available basis. except as expressly set forth in these terms, ion exchange makes no other warranties and hereby expressly disclaims all warranties of any kind, express or implied, with respect to the services, the site, and their contents, including without limitation the implied warranties of merchantability, non-infringement, title and fitness for a particular purpose, and implied warranties arising from course of dealing or performance. ion exchange makes no warranties of any kind that the services or site will always be available, accessible, uninterrupted, timely, secure, operate without error, or that any software provided hereunder will operate without error. any content, including ads, transmitted through the use of the services is done at publisher’s own discretion and risk, and publisher will be solely responsible for such use. further, ion exchange makes no representations regarding the level of clicks or impressions on any ad delivered through the services. some states may prohibit a disclaimer of warranties and publisher may have other rights that vary from state to state.
ion exchange assumes no responsibility or liability whatsoever for the content of the ads and publisher understands that ion exchange does not produce ad content but rather facilitates transactions between publishers and advertisers. ion exchange has no responsibility to review the ad content provided by its advertisers or ad networks.
10.1 by publisher
10.2 by ion exchange
ion exchange hereby agrees to defend, indemnify, and hold harmless publisher, and its directors, officers, employees, agents, and representatives, from and against any and all losses, including without limitation reasonable attorneys’ fees and the costs of any investigation, directly or indirectly arising from any third-party claim that the services infringe a third-party intellectual property right, provided that such losses do not arise from: (a) a modification to the services or ion exchange ad services made by the publisher that is not under the approval or direction of ion exchange, or (b) the combination or use of the services or ion exchange ad services with products, materials, or technology not approved or provided by ion exchange. for the avoidance of doubt and subject to the following sentence, ion exchange shall have no obligation hereunder to the extnt that any such losses arise out of or relate to any third-party materials (including, but not limited to, ads). if and to the extent that ion exchange is indemnified by its advertisers with respect to the demand policies, (“indemnified ad content”), ion exchange will pass through such indemnity to publisher for third-party claims brought against publisher alleging that the indemnified ad content does not comply with the demand policies. “demand policies” shall mean the policies available at www.infomo.com/privacy
10.3 indemnification procedure
the obligations of each party (the “indemnitor”) under these terms to defend, indemnify, and hold harmless the other party and its respective directors, officers, employees, agents, and representatives (each an “indemnitee”) shall be subject to the following: (a) the indemnitee shall provide the indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve the indemnitor of its obligation to defend, indemnify, and hold the indemnitee harmless to the extent it reasonably demonstrates that its defence or settlement of the claim or suit was adversely affected thereby; (b) the indemnitor shall have sole control of the defence and of all negotiations for settlement of such claim or suit; provided, however, that the indemnitor shall not settle any claim unless such settlement completely and forever releases the indemnitee from all liability with respect to such claim or unless the indemnitee consents to such settlement in writing (such consent shall not be unreasonably withheld); and (c) the indemnitee shall cooperate with the indemnitor in the defence or settlement of any such claim or suit; provided, however, that the indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by the indemnitor. subject to clause (b) above, the indemnitee may participate in the defence of any claim or suit in which the indemnitee is involved at its own expense.
11. limitation of liability
except for the parties’ confidentiality obligations under section 8 and the parties’ indemnification obligations under section 11, in no event shall either party or its subsidiaries, affiliates, shareholders, directors, officers, employees, agents, and representatives be liable under these terms to the other party for any indirect, consequential, special, incidental, statutory, punitive, or exemplary damages, including without limitation lost profits, lost savings and lost revenues, loss of data, loss of use, loss of time, shutdown or slowdown costs, inconvenience, lost business opportunities, damage to goodwill or reputation, or other economic loss, regardless of whether such liability is based on breach of contract, tort, strict liability or otherwise, and even if advised of the possibility of such damages or such damages could have been reasonably foreseen, except when such damages are caused by the gross negligence or willful misconduct of the party, its employees, or agents. for the avoidance of doubt, publisher specifically agrees that ion exchange shall not be liable for any losses arising from interruption, suspension, or termination of the services, whether intentionally or negligently. publisher further agrees that ion exchange shall not be liable to publisher or end-users for any threatening, defamatory, obscene, or otherwise offensive content that may be transmitted through the services.
sole and exclusive remedy. if publisher is dissatisfied with the services, the content available on or through the services, or any of the terms of the services, publisher’s sole and exclusive remedy is to discontinue using the services. this remedy is intended to be the sole and exclusive remedy of the publisher under these terms. the parties also agree that, regardless of the failure of the sole and exclusive remedy, ion exchange will not be liable for any consequential, special, incidental, statutory, punitive, or exemplary damages, loss of use, loss of profits, or business interruption arising from or relating to the publisher’s use of the services or from any breach by ion exchange of these terms.
in no event shall the aggregate liability of ion exchange and its subsidiaries, affiliates, shareholders, directors, officers, employees, agents, or representatives arising from or relating to these terms, whether based on breach of contract, tort (including negligence), or otherwise, exceed the lesser of (a) the amounts paid by ion exchange to publisher under these terms during the 6-month period prior to the date such liability arose
no action or proceeding against ion exchange or ion exchange’s directors, officers, shareholders, employees, agents, representatives, parents, subsidiaries, successors, or assignees may be commenced more than twelve (12) months after the claim arises.
all notices and other communications required or permitted to be given to a party pursuant to these terms shall be in writing, and shall be deemed duly given (a) on the date delivered if personally delivered, (b) on the business day after being sent by federal express or another recognized overnight courier service which utilizes a written form of receipt for next day or next business day delivery in each case addressed to the applicable party or (c) on the business day following the day of facsimile or email transmission; provided that a party hereto may change its address for receiving notice by the proper giving of notice hereunder.
12.2 marketing and publicity.
during the term, publisher hereby grants to ion exchange a non-exclusive, royalty-free, fully paid-up, worldwide license and right to use and display publisher’s name, logos, trademarks, tradenames, and/or service marks, including (as applicable) those of the publisher properties, in and on ion exchange’s customer lists, website, presentations, case studies, testimonials, blog posts, materials provided to prospective partners, social media, and other physical and digital marketing materials.
12.3 governing law.
these terms shall be governed by, and construed in accordance with, the indian laws without regard to the conflict of laws provisions thereof. each party hereby submits to the exclusive jurisdiction of the mumbai courts for purposes of all legal proceedings arising out of or relating to these terms and the subject matter hereof, and waives any jurisdictional, venue, or inconvenient forum objections to such courts. the prevailing party in any litigation shall be entitled to recovery of its reasonable attorneys’ fees from the other party, in addition to any other award of damages from the court.
12.4 binding effect; assignment.
these terms and the rights, obligations, and licenses herein, shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, successors, assigns, and personal representatives. neither party shall assign these terms in whole or part without the prior written consent of the other party, except that either party may assign these terms in connection with a merger, reorganization, or sale of a substantial part of the assets or business to which these terms relate.
12.5 severability; waiver.
if any portion of these terms is held to be illegal or unenforceable, that portion shall be restated, eliminated, or limited to the minimum extent necessary so that these terms shall reflect as nearly as possible the original intention of the parties, and the remainder of these terms shall remain in full force and effect. the failure of ion exchange to enforce any right or term of these terms shall not be deemed a waiver of such right or term.
12.6 relationship of the parties.
the parties are independent contractors, and nothing contained in these terms shall be deemed to create a joint venture, partnership, fiduciary, or other similar relationships between the parties. each party has sole responsibility for its activities and its personnel, and shall have no authority and shall not represent to any third party that it has the authority to bind or otherwise obligate the other party in any manner.
12.7 headings; interpretation.
the section headings used in these terms are intended for reference purposes only and shall not affect the interpretation of these terms. if an ambiguity or question arises with respect to any provision of these terms, these terms will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favouring or disfavoring either party by virtue of authorship of any of the provisions of these terms.
12.8 force majeure.
neither party shall be liable for any failure or delay in the performance of any of their respective obligations if prevented from doing so by a force majeure event. “force majeure event” means (a) floods, earthquakes, or other similar elements of nature or acts of god; (b) riots, civil disorders, rebellions or revolutions in any country; or (c) any other cause beyond the reasonable control of the non-performing party, provided the non-performing party is without fault in failing to prevent or causing such default or delay, and such default or delay could not have been prevented or circumvented by the non-performing party through the reasonable use of alternate sources, workaround plans, or other reasonable precautions.
12.9 cumulative remedies.
all rights and remedies under these terms are cumulative and are in addition to any other rights and remedies a party may have at law or in equity.
12.10 entire agreement;
amendment. these terms constitute the entire agreement of the parties with respect to the subject matter hereof and supersedes any and all existing or prior agreements and communications, whether written or oral, relating to the subject matter hereof. ion exchange reserves the right to change or modify any of the terms and conditions contained in these terms at any time and in its sole discretion upon providing prior notice to publisher. any changes or modifications will be effective immediately upon posting the revised terms on ion exchange’s services, and publisher waives any right publisher may have to receive additional notice of such changes or modifications. publisher’s continued use of ion exchange’s services following the posting of the revised terms shall constitute publisher’s agreement to be bound by the revised terms. if publisher does not agree to any of the terms of the revised terms, publisher must stop using the services.