MEDIATION SERVICES TERMS AND CONDITIONS

Effective Date: ______________

These MEDIATION SERVICES TERM AND CONDITIONS ("Terms") govern your relationship with X3M LLC, a company incorporated under the laws of Delaware, USA, located at 1201 N Orange ST. Suite 700, Nro 7352, Wilmington, DE 19801-1186 ("X3M"). X3M owns a mediation platform that helps mobile publishers sell their adspace (“Platform”) and also provides ad optimization and collection services related thereto (the “Managed Services” and together with the Platform, the “X3M Services”).  

NOW THEREFORE, by clicking "I Accept," you as publisher (the “Publisher”) engage X3M under these Terms. Please read them carefully. If you do not agree with our Terms, refrain from using X3M Services.

1. THE X3M PLATFORM

1. Publisher engages X3M as its ads mediation provider. X3M will provide access to the Platform in order for Publisher to place third parties’ advertising on Publisher’s inventory of adspaces. Publisher’s mobile apps and integrated demand sources will be referred to as “Properties” for the purpose of these Terms.

2. The Platform allows for the management and optimization of multiple advertising networks to fill ad inventory in the Properties. It is integrated through an SDK and acts as an intermediary between the Publisher and demand sources, enabling the management of certain demand sources through an integrated platform that consolidates reporting, billing, and performance metrics.

3. Following the acceptance of these Terms and subject to Publisher providing the information required by X3M, X3M will designate Publisher as an authorized user of the Platform and allow Publisher to integrate the Platform. In turn, Publisher will allow X3M to mediate, as applicable, advertisements and other content from third parties advertisers on Publishers’ adspaces from Properties.

4. In order to grant access to the Platform, X3M will provide Publisher the documentation, access and tools to be implemented. Publisher understands and agrees that in order to use the Platform, Publisher will need to integrate an X3M SDK in the application/s where X3M will act as mediation provider. Furthermore, Publisher understands that from time to time X3M may update such SDK, that those updates may require the Publisher to update the integrated SDK and that failure to maintain the most recent version of the X3M SDK may result in decreased performance. X3M agrees to promptly inform Publisher of any updates.

5. X3M may require Publisher to provide certain information in order to send bid requests to advertisers. Under no circumstances shall X3M have any liability, in any manner, for any errors arising from, or related to such information provided by Publisher.

6. X3M is not required to fill any guaranteed number of Publisher’s bid requests. X3M will have no obligation to process a request for advertisements that are not sent in compliance with the requirements of these Terms.

2. THE X3M MANAGED SERVICES

1. In addition to the Platform, Publisher engages X3M to provide Managed Services, consisting of the Managed Ad Operations and a collections service called Single Point of Payment.

2. Under the Managed Ad Operations X3M will handle:

1. Ad network and demand partner setup, configuration, and management
2. Optimization of ad placements, bidding strategies, and pricing
3. Performance reporting and analysis
4. Relationship management with demand partners

3. Publisher acknowledges that successful delivery of the Managed Ad Operations, relies on Publisher's timely cooperation. This includes, but is not limited to:

1. Providing access to relevant ad accounts, platforms, and data
2. Dedicating engineering resources as reasonably necessary. Among other things, such resources could be required for tasks including but not limited to the integration of new ad networks or demand partners, updating SDKs and/or adjusting to new technologies and regulations.

4. Publisher understands that when executing its duties under the Managed Ad Operations, X3M will implement changes without prior approval that may impact overall optimization outcomes, revenue, app performance and user experience. Publisher understands that X3M will operate on a best efforts basis with no guarantees as to the outcome of the implemented changes. NO ADVICE OR INFORMATION WHETHER SPOKEN OR WRITTEN, OBTAINED BY PUBLISHER FROM X3M OR THROUGH THE X3M SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE TERMS.

5. Under the Single Point of Payment service, X3M will consolidate collections resulting from the sale of advertising inventory in the Publishers apps from the corresponding demand sources on a monthly basis. Such payments shall be consolidated in an account belonging to X3M, who shall then make a single monthly transfer to Publisher for the full collected amount net of corresponding fees and withholdings if any.

6. Publisher understands that while X3M will undertake all reasonable efforts to work only with reputable demand sources and will be diligent in managing the corresponding collections, it is not liable for any payments due but not made by any demand source owing money to Publisher.

7. Publisher understands that the minimum payment threshold for monthly payments is set at $250 (two hundred and fifty United States Dollars). Should the balance due by X3M to Publisher under the Single Point of Payment service at month end amount to less than the minimum payment, the balance shall be rolled over to the next month until the aggregate amount due exceeds the minimum payment.

8. Payments made pursuant to these Terms shall be made on a net 60-day basis, in United States Dollars (USD), net of any applicable banking fees or transaction costs.

3. LICENSE OF THE PLATFORM

9. Subject to the terms and conditions of these Terms, X3M hereby grants to Publisher a temporary, non-exclusive, non-transferrable, non-sublicensable, limited and revocable license, during the Term, to access and use the Platform, subject to the limitations of these Terms.

10. The account provided is for Publisher use only. Publisher may not authorize others to use the account and may not assign or otherwise transfer the account or these Terms to any other person or entity without written consent from X3M. Any unauthorized transfer of the account will be deemed as a breach of these Terms, giving X3M the right to close the account and claim for the losses suffered. Publisher will always be responsible for any and all uses of the Platform made by Publisher´s personnel and the Publisher will indemnify and hold X3M harmless in accordance with Section 10 of these Terms.

11. Publisher acknowledges that X3M is not responsible for third-party access to the account that results from theft or misappropriation of the usernames and passwords or any other circumstance outside of X3M control.

12. Publishers hereby grants X3M all the necessary rights and permissions to: (a) access, index, store, and cache requests made from advertisers, (b) access the Properties to mediate advertisers’ advertisements and (c) access Publisher´s advertisers or demand sources accounts, if applicable.

13. X3M reserves the right to (i) make substitutions and modifications in the specifications and technology of the Platform and/or any other software or systems used in connection with the Platform; and (ii) discontinue the Platform or any related software or systems, without prior notice.

4. FEES AND PAYMENT

14. In exchange for the provision of the X3M Services, X3M shall charge a flat fee of 15% of all advertising Revenue (as defined below) mediated by the X3M Platform.

15. Publisher acknowledges and understands that in accordance with the Single Point of Payment terms, X3M will distribute to Publisher on a monthly basis the earnings for valid impressions filled by X3M, calculated exclusively based on X3M accounting and the numbers in X3M reporting system, net of the X3M fees and subject to the minimum applicable payment threshold.

16. Payments made pursuant to these Terms shall be made on a net 60-day basis, in United States Dollars (USD), net of any applicable banking fees or transaction costs.

17. Revenue shall mean:  revenues actually received by X3M from the sale, use, or other disposition of ads displayed on Properties, less applicable taxes, less any applicable agency commissions, less any applicable buyer fees, less any allowances actually made or taken for returns or discounts, less invalid traffic or impressions.

18. Publisher shall have 15 days since receipt of such invoice to dispute discrepancies.

5.  REPRESENTATIONS AND WARRANTIES

19. Publisher represents and warrants that: (a) it is the owner of or has the rights to each Properties designated in connection with the use of the Platform; (b) it has all necessary right, power and authority to enter into these Terms and to perform the acts required hereunder; (c) any data supplied or disclosed to X3M under or in connection with the Terms shall be collected, used, disclosed, and otherwise processed in accordance with applicable data protection laws and regulations and without breach of any rights of any person or entity or of any Terms with a third party; (d) any data made available to X3M includes all necessary rights, consents, and permissions for Publisher to collect, use, disclose, and otherwise process such data as set forth in these Terms; (e) each of the Properties and any material displayed therein comply with all applicable laws and regulations and all requirements of these Terms; (f) each of the Properties (i) do not violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other third party legal rights, (ii) do not include content which is degrading, defamatory, unlawful, profane, obscene, sexist, pornographic or discriminatory, and (iii) do not promote an action or activity which is unlawful or contrary to morality or public order;  (g) it shall not engage in spidering or harvesting, or participate in the use of software, including but not limited to spyware, designed to collect data from the Platform; (h) it shall not interfere with or disrupt the proper provision of the services, user access, or the servers or networks that provide the services, or transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems; stalk, harass, or harm another individual; (i) it shall not probe, scan, crack, track and/or test the vulnerability of any system or network of the Platform, attempt to circumvent any technological measure or authentication measures implemented by X3M or any of our providers or any other third party (including another user) to protect the Platform or our services; (j) it shall not access, search or attempt to access or search the Platform or services by any means (automated or otherwise) other than through the interfaces published by X3M or attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the Platform or Services; and (k) it shall not use the Platform in any other way not permitted by these Terms;

20. X3M does not intend, and does not undertake, to monitor the advertisements that are mediated on the Properties using the Platform.

21. Publisher agrees to keep X3M informed regarding any relevant events related to the use of the Platform or the provision of the Services and allow X3M to take all reasonable steps to protect its rights hereunder – specifically those related to intellectual property – and to avoid any circumstance which may imply a liability of X3M towards the Publisher or third parties.

6. TERM AND TERMINATION

22. The term of these Terms shall commence on the Effective Date and shall continue for 12 months, unless earlier terminated as provided herein (the “Term”). The Term will automatically be renewed for subsequent periods of 12 months unless one party sends a termination notice to the other within 30 days prior its renewal.

23. Either party may, at any time, upon written notice to the other party, terminate these Terms without penalty to the extent that such termination is, or is reasonably likely to be, required to comply with applicable law, regulation, order or rule of any governmental authority or self-regulatory organization, as determined by such party in its reasonable discretion. 

24. Any Party may at any time, by providing at least thirty (30) days prior written notice, terminate these Terms for convenience without penalty.

25. Either party may terminate these Terms immediately upon the occurrence of one or more of the following events:

1. The failure of a party to comply with any material term or condition of these Terms after the non-defaulting party has provided the other party with thirty (30) days prior written notice specifying the nature of such default and the defaulting party fails to cure such default within such notice period; or
2. The dissolution or liquidation of the other party, the insolvency or bankruptcy of the other party, the institution of any proceeding by or against the other party under the provisions of any insolvency or bankruptcy law; the appointment of a receiver of any of the assets or property of the other party, or the issuance of an order for an execution on a material portion of the property of the other party pursuant to a judgment.

26. Except otherwise set forth in these Terms, in all cases of termination the following terms will apply:

1. In the event of any termination prior to the completion of all the Term, Publisher will only pay for those months where adspaces were made available on the Platform. Any services from Exhibit A which have been provided to Publisher up to and through the date of termination are due.  Neither party will be paid for work contemplated but not done, nor for anticipated profits in connection with work not actually done, nor for any consequential costs or expenses.
2. Effective as of the termination date, the license granted to the Publisher for the access and use of the Platform will expire without requiring any further action of the Publisher. As a result, upon termination of these Terms, by any cause, the Publisher will cease all access and use of the Platform.

27. Account Inactivity and Closure. If a Publisher’s account shows no activity for a continuous period of six (6) months, X3M reserves the right to close such inactive account. In the event of account closure due to inactivity, any outstanding balances will be handled as follows:

1. If the balance meets or exceeds the minimum balance threshold, the Publisher may claim this balance within thirty (30) days of account closure notification.
2. If no claim is made within this thirty-day period, or if the balance does not meet the minimum threshold, the remaining balance shall be forfeited and thereby absorbed by X3M.

7. INTELLECTUAL PROPERTY

28. Each Party will retain all rights to any software, ideas, concepts, know-how, development tools, techniques or any other proprietary material or information that it owned or developed prior to the date hereof, or acquired or developed after the date hereof, without reference to or use of the intellectual property of the other Party (collectively referred to as "pre-existing materials" of the Party).

29. X3M retains ownership of all rights, title interest, including without limitation patent, trademark, author´s right and any other intellectual property rights, whether registered or not, over any and all software related to the Platform, the Platform, X3M Services, and to any and all material developed, owned, created or licensed by X3M, whether it is available or not through the Platform and the X3M Services.

30. Publisher agrees on behalf of itself and all personnel, that all reports, results, information created, compiled, analyzed and/or derived  from the Platform or X3M Services offered by X3M shall belong to X3M ("X3M Data"). X3M may use the X3M Data collected when providing mediation services only: (i) to run the X3M platform and further optimize it; (ii) to develop new products and services related to mediation or ad monetization; and (iii) for further development of X3M products and services. Publisher shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise maka available in any manner, X3M Data to any third party (other than to its legal and financial advisors, agents, employees, and consultants on a “need to know” basis who are under obligations of confidentiality at least as restrictive as those in these Terms).

31. Neither of the parties may register or have registered or use in its name or in the name of a third party, any trademark, logotype or name similar to those owned by the other party or on which the other party has a license, nor to exercise or assign any right over them different from the one arising from these Terms. The parties may only use the name of the other Party to the extent necessary to comply with the purpose of these Terms and conduct its business. Logotypes and trademarks may only be used with prior authorization and, if authorized, their use will not grant any property rights to the authorized party, all of which will remain under the ownership of the authorizing party. Notwithstanding the foregoing, by the execution of these Terms Publisher authorizes X3M to use Publisher´s name in X3M list of partners and advertising material.

8. CONFIDENTIALITY

32.  A party (the “Receiving Party”) may receive Confidential Information (as defined below) of the other party (the “Disclosing Party”) and the Receiving Party shall keep such Confidential Information in confidence and protect such Confidential Information, including, but not limited to, by security measures at least as restrictive as those it takes to protect its own Confidential Information, but in no case less than reasonable security measures.

33. For the purpose of these Terms, “Confidential Information” shall mean administrative, technical, financial, trade secret, or other private information, not generally available to the public, whether or not such Confidential Information carries a proprietary legend, is marked as confidential, or is transmitted verbally. Confidential Information does not include information, even if designated by a party, which: (a) is or becomes generally available to the public without breach of these Terms; (b) can be documented was in the possession of the Receiving Party prior to its disclosure by the Disclosing Party; (c) becomes available from a third party not in breach of any obligations of confidentiality and without knowledge by the Receiving Party of any breach of a fiduciary duty or obligation owed to Disclosing Party; or (d) can be documented was independently developed by the Receiving Party.

34. Except as required by law or permitted by these Terms, the Receiving Party shall not disclose Confidential Information to any third party (other than to its legal and financial advisors, agents, employees, and consultants on a “need to know” basis who are under obligations of confidentiality at least as restrictive as those in these Terms), without the Disclosing Party’s prior express written consent, and the Receiving Party shall not use any Confidential Information for any purpose other than in connection with the performance of its obligations and exercise of its rights under these Terms.

35. At the express written request of the Disclosing Party, the Receiving Party shall return or destroy any Confidential Information of the Disclosing Party to the extent reasonably possible and except as otherwise needed as evidence or as required to be provided by each Party in an aggregated form to governmental authority(ies). The Parties agree that the Confidential Information of the Disclosing Party is and remains the property of the Disclosing Party. Disclosure or use of Confidential Information by the Receiving Party in violation of the provisions of these Terms would cause irreparable injury to the Disclosing Party; therefore, in the event either Party breaches the provisions of this Section, the other Party, in addition to any other remedies it may have, is entitled to preliminary and permanent injunctive relief without having to post a bond.

36. The Receiving Party may disclose Confidential Information pursuant to an order of a court of competent jurisdiction, by rule or regulation of an administrative agency to which the Receiving Party is subject, or subpoena, provided that, to the extent permitted by law and feasible, the Receiving Party provides prompt written notice of such court order, requirement, or subpoena to the Disclosing Party to enable the Disclosing Party to seek a protective order, confidential treatment, or to otherwise prevent or restrict such disclosure. The Receiving Party will reasonably cooperate, at the Disclosing Party’s expense, to assist the Disclosing Party in seeking such protective order or from otherwise preventing or restricting such disclosure.

9. PRIVACY

37. By integrating with the Platform, Publisher acknowledges that X3M collects and/or receives data related to an end user from the Properties including persistent online identifiers such as IP address, device ids, ad-ids, latitude/longitude, identifiers for smart devices (including IP address) etc. Publisher agrees that where any data or component thereof is considered as personally identifiable information or personal data or personal information under applicable law, Publisher shall notify its end users that Publisher permits collection of and/or provides such information to other partners like X3M and shall obtain all necessary consents for such collection, sharing, and/or use thereof by such partners including X3M as envisaged under these Terms for purposes such as targeted advertising, retargeting, hosting survey based campaigns, data analytics (including creation of audience profiles, segments, insights) and content personalization through various channels.  

38.  Each party agrees to comply with its obligations with respect to end user data as stated in these Terms and as applicable to it in its processing thereof under relevant laws.

10. DISCLAIMER, INDEMNIFICATION AND LIMITATION OF LIABILITY

39. Disclaimer. X3M does not represent or warrant that the Platform and the X3M Services is reliable, accurate, complete, or otherwise free from defects. The access to the Platform and the X3M Services are provided “as is”, and any use thereof will be undertaken solely at Publishers own risk. X3M reserves the right, in its sole discretion, to include or cease providing the Platform and the X3M Services at any time (subject to notice as may be required herein), and X3M does not give or enter into any conditions, warranties or other terms with regard to the Platform or the X3M Services. In particular and without limiting the foregoing, no condition, warranty or other term is given or entered into to the effect that the Platform or X3M Services will be of satisfactory quality, noninfringement or that the Platform or X3M Services will be fit for any particular purpose or make any monies or complete Publishers adspaces. The Publisher hereby declares and agrees that it has fully and independently understood the status of the Platform and the X3M Services, and Publisher has had the chance to ask X3M about the scope and features of the Platform and X3M Services prior to the execution of these Terms.

40. Indemnification. Publisher agrees to defend, hold harmless and indemnify X3M, its affiliates, subsidiaries, directors, members, shareholders, employees and officers from and against any and all third party allegations, claims, actions, causes of action, lawsuits, damages, liabilities, losses, costs and expenses (including reasonable legal fees and expenses) relating to or arising out of or from (a) the use or inability to use the Platform; (b) the breach of duty, representation, warranty, obligation or covenant  of these Terms; (c) the violation of any applicable laws, rules or regulations; (d) the breach of any third party Terms; or (e) the violation of any right of any third party (a “Claim”). Should any Claim give rise to a duty of indemnification under the provisions of these Terms, then X3M shall promptly notify the Publisher in writing; provided that failure to give such prompt notice will not relieve the Publisher of its obligations under this section, except to the extent of losses that would have been avoided had such notice been given. X3M will fully cooperate with the Publisher to enable the Publisher to fulfill its obligations hereunder with respect to any Claim. X3M, at its own expense, may participate in the defense, provided that the Publisher shall control such defense and all negotiations relative to the settlement of any Claim. Participation in the defense shall not waive or reduce any obligations of the Publisher to indemnify or hold X3M harmless. The Publisher may enter into a settlement only if it: (i) involves only the payment of money damages by the Publisher; and (ii) includes a complete release of X3M. Any other settlement will be subject to written consent of X3M (consent not to be unreasonably withheld or delayed).

41. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM OR IN CONNECTION WITH THESE TERMS, OR THE X3M SERVICES, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY (INCLUDING CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE), WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES YOU HAVE ACTUALLY PAID DURING THE 6 MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.

11. MISCELLANEOUS

42. Amendment. These Terms  may only be amended by a written instrument signed by both parties.

43. Assignment. X3M shall have the unrestricted right to assign all or part of its rights and obligations under theseTerms  to an affiliate. Furthermore, if, during the term of these Terms , X3M is involved in a restructuring, merger, spin-off, acquisition, asset sale or any other transaction whereby all or part of X3M´s business or operations is transferred or assigned to a third party, X3M shall have the right to assign theseTerms  to such third party, in whole or in part, in connection with such transaction.

44. Survival. Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of theseTerms  shall survive and remain in effect after such happening.

45. Entire Terms. The parties agree that these Terms, its exhibits, and any subsequent amendments, shall constitute the complete and exclusive statement of the Terms  between them, and supersede all prior or contemporaneous proposals, oral or written, and all other communications between them relating to the subject matter herein.

46. Force Majeure. X3M shall not be liable to the other for any delay or failure to perform any of the services set forth in these Terms  or subsequent amendments due to causes beyond its reasonable control including, but not limited to, acts of god, acts of a public enemy, acts of a foreign government, acts or omissions of a carrier (other than an affiliate, subcontractor, agent or principal of the party claiming excuse), fires, floods, earthquakes, hurricanes, tornadoes, typhoons, droughts, wars, epidemics, riots, theft, quarantine restrictions, and freight embargoes, or, acts of a regulatory agency or other governmental body (collectively “force majeure conditions”).

47. Governing Law. These Terms  shall be governed by and construed solely and exclusively in accordance with the laws of Delaware, United States of America, without reference to its conflicts of law principles and shall be enforced in case of any dispute on Delaware, United States of America. The prevailing party of any litigated dispute arising out of or relating in any way to these Terms  shall receive its reasonable attorneys’ fees, together with its costs and expenses incurred resolving the dispute, as part of the judgment

48. Independent Parties. The parties hereto are independent contractors and neither party is an employee, agent, partner or joint venturer of the other. Neither party shall have the right to bind the other to any Terms with a third party or to incur any obligation or liability on behalf of the other party. Minority shareholders in X3M LLC shall not be deemed joint venturers for the purpose of these Terms.

49. Notice. In the event Publisher is required or permitted to give notice, such notice shall be deemed given when delivery confirmation is received and such notice is delivered by certified mail, return receipt requested or a nationally recognized overnight courier service to contacts above and sending via electronic to the following contact:

X3M:                 contact@x3mads.com 

50. Severability/Waiver. If any of the provisions of these Terms  is or becomes illegal, unenforceable, or invalid (in whole or in part for any reason), the remainder of these Terms  shall remain in full force and effect without being impaired or invalidated in any way. The parties shall in good faith attempt to modify any invalidated provision to carry out the parties’ stated intentions. The waiver of any breach of any provision under these Terms  by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.

51. Binding Effect. These Terms shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

52. Changes to these Terms. From time to time, we may change these Terms. If we change these Terms, we will give you notice by posting the revised Terms on the Platform. Said changes will go into effect on the revision date shown in the revised Terms. By continuing to use the X3M Services, you are agreeing to the revised Terms.

PLEASE PRINT A COPY OF THESE TERMS FOR YOU RECORDS AND CHECK THE SITE REGULARLY FOR ANY CHANGES TO THESE TERMS.

ACCEPTANCE

By clicking "I Accept," Publisher agrees to be legally bound by these terms, representing that it has the authority to enter into these Terms.