Last Updated: May 1st, 2024
This Managed Advertisement Services Agreement (this "Agreement") is made by and between Yodo1, Ltd, a company incorporated under the laws of the British Virgin Islands (the "Yodo1"), and you, on your own behalf as an individual and on behalf of your employer or another legal entity (collectively "Developer", "you" or "your", and together with Yodo1, the "Parties" and each a "Party"). By clicking on the "Sign Up", "I AGREE" or "AGREE" button, or otherwise accessing and using the Services, you acknowledge and agree that: you have read and understood and agree to comply with the terms and conditions of this Agreement.
WHEREAS, Yodo1 desires to provide managed advertisement services to Developer, and Developer desires to engage Yodo1 to perform such services pursuant to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the foregoing, and of the mutual covenants and agreements hereinafter set forth, the Parties agree as follows:
As used in this Agreement, the following terms shall have the meanings set forth below:
· "Affiliate(s)" with respect to a legal person (such as an individual, corporation, partnership or limited liability company) shall mean any other legal person that controls, is controlled by or, is under common control with such legal person. For the purposes of this definition, the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such legal person, whether through the ownership of voting securities or by contract.
· "Applications" means the mobile application that is owned, operated or controlled by the Developer, and utilized the Service.
· "Hong Kong" means the Hong Kong Special Administrative Region of the People's Republic of China.
· "Net Revenue" means the gross revenue actually received by Yodo1 or its Affiliates generated from performing the Services, less (i) any service fees and operation costs to advertising networks, advertisers and Yodo1, (ii) any refunds or bad debts to advertising networks and advertisers, and (iii) adjustments made in good faith in the calculation of, or numbers used in the calculation of, a revenue share made during a prior Payment Period, the amount of which equals to the amount of "Finalized Earnings" shown on the Developer's Yodo1 MAS Dashboard.
· Services. During the Term, Yodo1 will provide Developer with managed advertisement services that facilitate the display of advertisements on the Applications from advertising networks, direct advertisers, and other resources (the "Service"). The Parties acknowledge and agree that Yodo1 will have exclusive control and manage rights with respect to all Applications' advertising inventories through Yodo1 SDK (as defined below).
· Advertisement. Yodo1 shall be solely responsible for, and has final authority on, decisions related to how to sell Developer's advertising inventory, including packaging, pricing, promotional offers, and all other related deal terms and conditions. Yodo1 intends that all advertisements delivered to the Applications comply with all applicable laws managed by advertising networks. Notwithstanding the foregoing, Developer agrees that (i) Yodo1 has no responsibility for any advertisements, including any content therein, (ii) Yodo1 has no obligation or ability to monitor or edit the advertisements, and (iii) Developer will not have the opportunity to review any advertisements prior to display on the Applications. If an advertisement on the Applications doesn't comply with any applicable laws, then the Developer may request that such advertisement be taken down from the Applications.
· Yodo1 SDK. The Parties acknowledge and confirm that to provide the Service, one or more Yodo1's codes, software, and/or software development kit (the "Yodo1 SDK") must be incorporated into the Applications. Yodo1 shall provide the Developer with such Yodo1 SDK, and Developer shall, at its sole expense, incorporate Yodo1 SDK into the Applications. Developer shall not use or host on any of the Applications any other codes, software, software development kit or otherwise enter into any similar arrangement with any third parties.
· Applications. Developer shall be solely responsible for the operation of and the content and materials on (except for the content of the advertisements submitted to the Applications by Yodo1) the Applications, including the development, operation, or maintenance thereof.
· Privacy Policy. Developer shall post, maintain, and comply with a privacy policy of each of the Applications that adequately and accurately discloses and is consistent with its practices in connection with its use of data provided by or otherwise collected from end users, and discloses the information that it may collect and how it may be used and disclosed by Developer, its affiliates, contractors, representatives, and agents. The Developer shall read, understood and accept our Privacy Policy, available at https://yodo1.com/en/privacy.
· Restrictions. Developer may not, and may not authorize or encourage any third party to:
generate fraudulent impressions, invalid traffic, or fraudulent clicks on any advertisements, including through repeated manual clicks, the use of robots or other automated tools, or any other method that may lead to artificially high numbers of impressions, downloads, or clicks;
edit, modify, filter, or change the order of any advertisement or the information contained in any advertisement, or remove, obscure or minimize any advertisement in any way;
distribute, sell, sublicense, rent, loan, lease, or transfer Yodo1 SDK to any third party;
use Yodo1 SDK to create or facilitate the creation of any product or service that is competitive with the Service or Yodo1;
combine Yodo1 SDK with other software such that Developer restrict, impede, circumvent, compromise, impact the functionality of or charge for access to Yodo1 SDK; or
copy (except for backup purposes), decompile, disassemble, translate, reverse engineer, modify, adapt, or create derivative works of Yodo1 SDK (including the runtime components and any other portions thereof).
· Updates. Upon Developer's request, Yodo1 will provide Developer with any upgrades, patches, enhancements, or fixes that Yodo1 makes available for Yodo1 SDK.
· SDK License. During the Term, Yodo1 hereby grants Developer a worldwide, non-transferable, non-assignable, non-sublicensable, non-exclusive license to use Yodo1 SDK for the sole purpose of allowing Yodo1 perform the Services under this Agreement.
· Ownership. As between Developer and Yodo1, Developer (and/or its Affiliates and licensors) shall own all right, title and interest in and to the Applications, other than Yodo1 SDK. As between Developer and Yodo1, Yodo1 (and/or its Affiliates and licensors) owns all right, title and interest in and to Yodo1 SDK.
· Yodo1 Payment Service Provider. Developer acknowledges and agrees that Yodo1 has engaged with Tipalti Inc., and Tipalti Payments, Inc., and our affiliates as the third-party payment service provider (such payment service provider, the "Payment Service Provider") to acting as the agent of Yodo1 to pay the Developer the Revenue Share pursuant to the terms and conditions of this Agreement.
· Net Revenue. In connection with Developer's use of the Service, Yodo1 will pay or cause the Payment Service Provider to pay Developer the Net Revenue each calendar month (each such payment period, "Payment Period").
· Revenue Statements. Yodo1 may prepare a revenue statement with respect to the Net Revenue for each Payment Period (the "Revenue Statement") and may provide such Revenue Statement to Developer at the end of each applicable Payment Period during the Term of this Agreement.
· Payments. Subject to the minimum applicable threshold for payment determined by the Developer, provided that, such threshold shall be no less than US$300 (the "Threshold"), Yodo1 shall pay or cause the Payment Service Provider to pay Developer the Net Revenue for a given Payment Period within fifteen (15) days after the end of such Payment Period. To the extent that the Net Revenue for any given Payment Period is less than the applicable Threshold, such Net Revenue shall be paid together with the payment for the next period in which cumulative accrued but unpaid the Net Revenue exceeds the Threshold.
· Taxes. Except as otherwise expressly set forth herein, each Party shall be solely responsible for all taxes, including but not limited to value added taxes and withholding tax, payable with respect to such Party's own income under this Agreement.
· Overpayment and Error. In the event of any overpayment or other payment error (as determined by Yodo1), whether as a result of inaccurate information from a third party or otherwise, Yodo1 may in its sole discretion: (i) deduct any overpayments or amounts associated with other payment errors from future payments due to you; and/or (ii) require reimbursement in full of any such amounts, which Developer agrees to remit to Yodo1 in full within seven (7) business days of request. Yodo1 reserves the right to deduct from any payments due or payable to you any amounts that Developer may owe Yodo1 or any of its Affiliates in connection with any product or service.
Information designated in writing as confidential, or if disclosed orally designated as confidential in a subsequent written notice provided within thirty (30) calendar days of such disclosure, or information that is reasonably customarily considered confidential within the applicable industry by the disclosing Party shall be treated as confidential information ("Confidential Information") of such Party. Each Party agrees to hold in confidence, and not to use except as expressly authorized in this Agreement, all Confidential Information of the other Party and to use at least the same degree of care that it uses to protect its own Confidential Information of like importance, but in no event less than reasonable care, to prevent the unauthorized disclosure or use of the other Party's Confidential Information, both during and for three (3) years after the expiration or termination of this Agreement. Either Party may, however, disclose Confidential Information to: (i) such Party's employees to the extent necessary to fulfill obligations under this Agreement, (ii) constituents of such Party (e.g. board of directors, stockholders, current or potential investors, legal counsel, accountants and other advisors) who are bound by confidentiality restrictions or have a fiduciary or ethical obligation to maintain the confidentiality of such information, and (iii) comply with applicable law.
Developer hereby represents and warrants to Yodo1 that:
· Developer is duly incorporated and validly existing as a company in good standing under the laws of its jurisdiction of incorporation;
· this Agreement has been duly authorized by Developer and when executed and delivered by the Parties, will constitute a valid and legally binding agreement of Developer, enforceable in accordance with its terms, subject as to enforceability to bankruptcy, insolvency, reorganization and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles;
· Developer's performance of this Agreement does not and will not at any point during the Term conflict with any other agreement by which the Developer is bound;
· Developer owns, possess, licenses or otherwise holds, and has authority to permit Yodo1 to perform its obligations, and exercise any rights or licenses your grant, under the Terms; and
· Developer hereby warrants and represents that it will not engage in any activity that constitutes or contributes to advertising fraud, including but not limited to:
Generating fraudulent impressions or clicks on advertisements.
Tampering with the Yodo1 SDK or integrating unauthorized third-party code for the purpose of manipulating advertisement revenue.
Providing misleading or inaccurate information to Yodo1 regarding the App's advertising activity.
· The Applications does not and will not (a) infringe upon, violate, or misappropriate any intellectual property rights, (b) slander, defame, or libel any person, or (c) contain any offensive, obscene, or otherwise inappropriate content.
· The Applications does not and will not contain any functions that offer monetary compensation or other incentives that can be converted into monetary compensation. For example, the Applications can not promise to pay users rewards (including cash, gift cards, discounts for physical goods or services, virtual goods or services, and cryptocurrencies) if the users complete browsing advertisements, clicking advertisements, submitting clue information, submitting orders, or performing other tasks.
Developer shall indemnify and hold Yodo1 (and Yodo1's stockholders, officers, directors, employees and agents) harmless from any and all third party claims, demands, reasonably incurred out-of-pocket costs and expenses (including attorneys' fees and costs), liabilities, losses and damages arising out of or resulting from any claims or suits where the allegations, if true, would violate Contractor's representations and warranties set forth in Section 6 (Representations and Warranties).
· Disclaimer. Except as expressly set forth in this agreement, Yodo1 SDK and any other materials are provided on an "as is" basis. Except for the express warranties made in this agreement, Yodo1 specifically disclaims any representations or warranties, express or implied, regarding Yodo1 SDK and any other materials provided under this agreement, including any implied warranty of merchantability, fitness for a particular purpose, and non-infringement, or any implied warranties arising from course of dealing or performance.
· Limitation on Damages. In no event shall Yodo1 be liable to developer for any consequential, indirect, incidental, punitive or special damages of any kind and nature whatsoever relating to Yodo1 SDK, this agreement or the transactions contemplated hereby, including without limitation damages for lost profits or lost goodwill and whether such action is based in contract, tort (including but not limited to negligence) or strict liability, regardless of whether developer has been advised of the possibility of such damages or whether such damages could have been reasonably foreseen. Except for the payment obligations of Yodo1 set forth in Section 4 (Payment) and the obligations set forth in Section 7 (Indemnification), the total liability for Yodo1 under this agreement shall not exceed the total amount paid by Yodo1 to the Developer under this agreement in the three (3) months immediately preceding the event giving rise to the claim.
· Term. The initial term of the Agreement shall commence on the date of acceptance of this Agreement ("Effective Date") and shall expire on the second (2nd) anniversary day of the Effective Date (the "Initial Term"). After the end of the Initial Term, this Agreement shall automatically renew for successive one (1) year renewal terms (each a "Renewal Term"). The Initial Term and any Renewal Terms shall be called the "Term".
· Termination. Either Party may terminate this Agreement, without penalty or liability to such Party, immediately upon written notice to the other Party. The rights and remedies provided in this Section shall not be exclusive and are in addition to any other rights and remedies provided by law or this Agreement.
· Termination for Breach. In the event of a material breach of this Agreement by the Developer, which breach is not cured within ten (10) days after written notice thereof by Yodo1, then Yodo1 may immediately terminate this Agreement without further notification.
· Effect of Termination. Upon termination or expiration of this Agreement:
Termination of License. Yodo1 shall immediately cease providing Services on the Applications and Developer shall immediately cease using all other intellectual property rights of Yodo1 licensed under the Agreement;
Return of Materials. Developer shall, as soon as practical, return to Yodo1, or destroy, at the option of Yodo1, all components of Yodo1 SDK, replication materials, samples, literature and sales aids of every kind and any other items provided to Developer by Yodo1; and
Yodo1 Payment Obligation. Within thirty (30) calendar days following the expiration or termination of this Agreement, Yodo1 shall pay to Developer all amounts then due, payable, or otherwise accrued to Developer, provided that Yodo1 has not detected any fraudulent activity associated with Developer's use of the Services hereunder. In the event of such detected fraudulent activity, Yodo1 reserves the right to withhold such amounts due or payable to Developer, pending resolution of the matter within 30 days from the notice from Yodo1.
Survival. The provisions of Section 5 (Confidentiality), Section 6 (Representations and Warranties), Section 8 (Limitation of Liability), Section 9 (Term and Termination) and Section 10 (General) shall survive the termination or expiration of this Agreement.
· Assignment. No Party may assign or transfer its rights under this Agreement to a third party without the prior written consent of the other Party. Notwithstanding the foregoing, Yodo1 may, with notice to but without the consent of Developer, assign this Agreement and the rights, licenses or obligations hereunder to an entity merging with, consolidating with, or purchasing substantially all of Yodo1's assets or stock, provided that the assignee shall assume all rights and obligations under this Agreement.
· Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and merges, revokes and supersedes all prior and contemporaneous agreements, understandings, arrangements, documents and communications (whether written or oral) between the Parties and is intended as a final expression of their agreement.
· Amendments and Waivers. This Agreement shall not be modified or amended except by written agreement signed by duly authorized representatives of the Parties. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of a Party, except by an instrument in writing signed by such Party, and no waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion. The failure of either Party to enforce, or the delay by either Party in enforcing, any of its rights under this Agreement shall not preclude either Party from commencing appropriate legal or equitable proceedings within the time provided by applicable law to enforce any or all of its rights under this Agreement, and any prior failure to enforce or delay in enforcement shall not constitute a defense.
· Force Majeure. Neither Party shall be liable for any delays or failure to perform as a direct result of an "act of God" or other force majeure causes such as fire, storm, earthquake, wars, revolutions, riots, civil commotion, national emergency, and act or order of any court, government or governmental agency ("Force Majeure Event"). The Party claiming the Force Majeure Event shall promptly notify the other Party of the event and its expected duration and use its diligent efforts to mitigate the effects of the Force Majeure Event upon such Party's performance of its obligation under this Agreement.
· Severability. If any provision of this Agreement is found to be illegal, invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
· Headings. The headings and captions are for convenience only and not for interpretation of this Agreement.
· Relationship of Parties. Nothing in this Agreement shall constitute any association, partnership or joint venture between the Parties hereto or be construed to evidence the intention of the Parties to constitute such. None of the Parties shall hold itself out contrary to the terms of this provision by advertising or otherwise.
· No Third-Party Beneficences. This Agreement constitutes an agreement solely between the Parties and shall not be construed to be for the benefit of any third party and is not intended to and will not confer any rights, remedies, obligations, or liabilities, legal or equitable, on any person other than the Parties and their respective successors and permitted assigns, or otherwise constitute any person a third-party beneficiary under or by reason of this Agreement.
· Disputes and Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Hong Kong. If any dispute shall arise in connection with this Agreement, either Party may initiate the dispute resolution procedures set forth in this Section by giving the other Party written notice of such dispute ("Dispute Notice"). Following issuance of a Dispute Notice, the Parties shall endeavor to resolve the dispute through negotiations conducted in good faith. All negotiations that take place in connection with the dispute shall be conducted in confidence and without prejudice to the rights of the Parties in any future proceedings. If the dispute cannot be resolved through good faith negotiations within thirty (30) calendar days from the date upon which the Dispute Notice was issued, either Party may submit the dispute to be finally resolved by arbitration under the Hong Kong International Arbitration Centre ("HKIAC") by written notice to the other Party and to HKIAC. The number of arbitrators shall be one, the language to be used in the arbitration proceedings shall be English and the place of arbitration shall be Hong Kong. Once a dispute is referred to arbitration, such dispute shall be finally and exclusively settled through binding arbitration unless the Parties otherwise reach an agreement to resolve the dispute.
· Costs and Expenses. The Parties shall each bear their own costs and expenses incurred in connection with the preparation, negotiation and execution of this Agreement.
· Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The executed signature pages of this Agreement may be delivered by email and transmission by email shall be considered proper delivery for legal purposes.