Your use of certain Services may be subject to additional terms and you may be required to enter into a separate written agreement, addendum, or insertion order (collectively, an “IO”), which will be presented to you for review and acceptance at the time you request such Services. All such IOs are incorporated herein by reference and constitute part of this Agreement. In the event of any conflict of terms between this Agreement and an IO, this Agreement will prevail, except for (i) any matter that this Agreement expressly permits to be established or modified in an IO, or (ii) any specific provision in an IO that expresses an intent to supersede a specified provision in this Agreement.
By accessing and/or using the Services, including by doing so after accessing this Agreement, you represent and warrant that you are at least 18 years old, and are otherwise legally qualified to enter into and form contracts under applicable law. If you are using the Services on behalf of a company, you further represent and warrant that you are authorized to act and enter into contracts on behalf of that company.
To access and use certain parts of the Services, you may be asked to create a user account ("Account"), and to provide information that personally identifies you and/or the entity you represent ("Personal Information"). You represent and warrant that, absent the prior written consent of Atmosplay, neither you nor the entity you represent will create more than one (1) account for each of either monetization or promotion purposes. You further represent and warrant that all user information you provide in connection with your Account and your use of the Services is current, complete, and accurate, and that you will update that information as necessary to maintain its completeness and accuracy by updating your Account. You agree that you will not submit any false or deceptive content (including without limitation any email address, name, username, company name, and so forth) to create multiple Accounts or to circumvent termination of a prior Account. If Atmosplay believes in its sole discretion that the information you provide is not current, complete, or accurate, Atmosplay has the right to terminate this Agreement and/or any IO, refuse you access to the Services, or to terminate or suspend your Account access at any time.
You will be asked to provide a username, password, and possibly other information to secure your Account. You are entirely responsible for maintaining the confidentiality of your password. You may not use the username or password of any other person, nor may you share your username and password, nor may you circumvent any authentication mechanism requiring the entry of usernames, passwords, or any other information to gain unauthorized access to the Services. You agree to notify Atmosplay immediately of any unauthorized use of your Account. Atmosplay shall not be liable for any loss that you incur because of someone else using your Account, either with or without your knowledge. You may be held liable for any losses incurred by Atmosplay, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else's use of your Account.
Further Approval Required
Creation of an Account does not automatically give you access or authority to participate in all of the Services. Further information and approval by Atmosplay will be required in order to participate in most promotional and/or monetization Services.
As part of the Services, Atmosplay provides an advertising platform for mobile applications (“Apps”) wherein you may, subject to Atmosplay’s approval, be provided with the opportunity and/or technology to monetize or promote Apps. Such opportunities are generally organized into individual “Campaigns,” which may have Campaign-specific terms and conditions as set forth in an IO. An “Action” is a payable act or event by a consumer upon which payment to Atmosplay is based or determined, such as CPI (cost per install), CPM (cost per thousand impressions), CPA (cost per action, such as an in-App action), and CPC (cost per click). The Action, all related qualifications, and the associated cost or payment shall be set forth in an IO, Campaign-specific terms, or other writing.
“Advertisers” are users who engage in promotional Services from Atmosplay. You are an Advertiser if, at any point during the term of this Agreement, Atmosplay has reason to expect payment from you hereunder. If you are an Advertiser, then you understand and agree that all terms in this Agreement that reference Advertiser(s) apply to and are binding on you.
“Creative” means and includes Advertiser’s App(s) as well as all artwork, text, audio, video and other content submitted by Advertiser for use with a specific Campaign. Subject to this Agreement and any Insertion Order, Advertiser (the “Licensor”) grants to Atmosplay and its affiliated entities and Publishers (as defined below) (collectively, the “Licensee”) a revocable, non-transferable, royalty free, international license to, as expressly permitted, access, use, display, and/or distribute through approved marketing channels the Creative, and any and all associated trademarks, service marks, tradenames, source code, websites, tracking platforms and/or copyrighted material that the Licensor provides to the Licensee for the limited purposes set forth herein.
“Publishers” are users who procure monetization Services through Atmosplay, for example, by advertising Advertisers’ Apps within Publisher’s own Apps. You are a Publisher if, at any point during the term of this Agreement, you expect payment from Atmosplay hereunder. If you are a Publisher, then you understand and agree that all terms in this Agreement that reference Publisher(s) apply to and are binding on you.
Prohibited Conduct. Publisher shall not modify or alter any Creative without the prior written approval of Atmosplay. Publisher shall not engage in promotional conduct through any App or in any other context with inappropriate content, which includes, but is not limited to, content that (i) contains or promotes the use of alcohol, tobacco or illegal substances, pornography, phone sex or escort services, expletives or other inappropriate language; (ii) promotes gratuitous violence, abuses or threatens physical harm; (iii) promotes illegal or unethical activity, racism, hate, "spam," mail fraud, gambling, sweepstakes, pyramid schemes, investment and money-making opportunities or illegal advice; (iv) promotes the use of illegal activities, such as how to build a bomb, counterfeiting money and software pirating; (v) is libelous, or defamatory, or false; (vi) is otherwise expressly prohibited by applicable law; (vii) willfully infringes on the trademark, copyright, or intellectual property rights of a third party; (viii) introduces viruses, worms, harmful code and/or Trojan horses on the Internet; or (ix) is otherwise objectionable to Atmosplay, in its sole discretion. Publisher shall not engage in any deceptive or misleading form of advertising or marketing.
Fraudulent Actions. Publisher shall not authorize or encourage any third party to generate fraudulent Actions (including, without limitation, fraudulent installs, impressions, or clicks), whether through repeated, manual action, the use of robots or other automated tools, and/or the use of fraudulent services or software. If Atmosplay determines, in its sole discretion, that Publisher has generated fraudulent Actions, Publisher will forfeit all payments related to the Campaign in question. Atmosplay reserves sole judgment in determining fraud and Publisher agrees to be bound by any and all such determinations. It is the obligation of Publisher to prove to Atmosplay that it has not engaged in fraud and that the Actions in question are legitimate, and Publisher must do so within seven (7) days of receipt of notice of the alleged fraud by Atmosplay, however communicated.
Publisher Networks. Unless expressly authorized in writing by Atmosplay, Publisher may not engage in any promotional conduct through a network of third-party affiliates (“Sub-Publishers”). To the extent the use of Sub-Publishers is allowed, Publisher agrees to assume all responsibility and liability for the actions of its Sub-Publishers and all references to “Publisher” in this Agreement and any IO shall be deemed to mean and include Sub-Publishers.
Atmosplay shall be exclusively responsible for displaying and administrating all active Campaigns and tracking associated Actions. Campaign data compiled by Atmosplay including, but not limited to, numbers and calculations regarding Actions and associated payments (“Campaign Data”), will be calculated by Atmosplay through the use of industry standard tracking technology and shall be final and binding on you. Any questions regarding the Campaign Data must be submitted in writing within seven (7) days of its initial appearance in Atmosplay’s tracking system; otherwise the Campaign Data will be deemed to be accurate and accepted by You.
Integration tags and tracking pixels (“Tags”) included in the Creative or otherwise incorporated may not be altered by You under any circumstances. Atmosplay employs a testing system to ensure that you have not removed or altered the Tags. Altering, removing or disabling Tags may jeopardize your ability to be paid for Actions and would be grounds for immediate termination of any Insertion Order and/or this Agreement, at Atmosplay’s sole discretion.
Unless otherwise specified in an IO, all payments due under this Agreement shall be paid in United States Dollars ($USD).
Prepayment. Unless otherwise specified in an IO, Advertiser shall be required, on a periodic basis, to prepay to Atmosplay all payments due under this Agreement (the “Prepayment Amount”) in advance of activating any Campaign to which the prepayment applies. Atmosplay shall make available Advertiser’s Campaigns until the total amount owing on the Actions accrued reaches the Prepayment Amount, at which point Atmosplay will be entitled to pause the Advertiser’s Campaigns until further prepayment has been made. If the Campaign, associated IO, or this Agreement is terminated for any reason whatsoever before the Prepayment Amount has been depleted, Atmosplay will, on written request, refund the remainder to Advertiser within thirty (30) days of said termination. Unspent Prepayment Amount will otherwise remain on account until the Advertiser utilizes the balance or requests a refund.
Credit. In limited instances, and subject to an authorized credit check and approval by Atmosplay, Atmosplay will authorize an Advertiser to proceed on a credit basis. In such instances, Payment in full shall be due from Advertiser to Atmosplay within thirty (30) days of the date on invoice.
Invoicing. Where credit has been granted, Atmosplay will invoice Advertiser monthly, in arrears following the completion of each calendar month, for all Actions incurred during the month. On a real time basis or no less than weekly, Advertiser shall provide Atmosplay with all statistics relating to completed Actions. Atmosplay will invoice Advertiser based on the higher of the Actions tracked by Advertiser or the Actions tracked by Atmosplay for the payment period, and Advertiser agrees to pay all amounts as invoiced.
Late Payments. Advertiser shall pay to Atmosplay interest on any past due payments at the rate of 1.5% per month, or if less, the highest rate permitted under applicable law, and all costs of collection, including reasonable attorney's fees and expenses. For purposes of this paragraph, “past due payments” shall mean and include any prepayments that have been reversed, declined, or charged back without Atmosplay’s permission.
Payment. By default, Publisher reporting and resulting revenue payments will be net of the Atmosplay revenue share. Unless a fixed revenue share is specified in the IO or agreed elsewhere in writing, the revenue share will be set at Atmosplay’s own discretion, subject to change, and calculated with the goal of paying a net revenue level competitive to publisher expectations and or that of their other monetization partners. Unless otherwise specified in an Insertion Order, all payments to Publishers shall be made on a net-30 basis—i.e., within thirty (30) days after the last day of a given calendar month, for Actions generated by Publisher in that month, less any returns and chargebacks. Payment will be based on Atmosplay’s tracking of Actions and will be subject to a minimum payout threshold of $250. Any Publisher account balances payable that are below the $250 payout threshold will be carried forward until the payout threshold is met. All Publisher payments must be supported by an invoice to Atmosplay.
Invalid Actions and Withholding. Atmosplay may withhold or adjust in full or part, any payment to be made to Publisher, or deduct from Publisher any amounts refunded or credited to Advertisers, in the event Atmosplay identifies any Invalid Action as described herein or other breach of this Agreement as determined by Atmosplay in its sole discretion. “Invalid Action” means and includes but is not limited to (i) fraudulent Actions generated by any person, automated program or similar device, including clicks or impressions originating from any computers under Publisher’s control; (ii) incentivized Actions (e.g., generated by promise of compensation, or by misrepresentation); and (iii) any actions generated in violation of this Agreement or any IO. Atmosplay reserves the right to receive all revenue generated by publisher from Publisher paid under this Agreement in the event of any Invalid Action, or noncompliance with this Agreement. Publisher will promptly reimburse Atmosplay for any such amount it had received prior to the notice to publisher by Atmosplay to enforce this paragraph. In the event a legal action is brought against or a dispute is raised with Atmosplay by any Advertiser in connection with Publisher, Atmosplay reserves the right to hold amounts otherwise due and owing to Publisher under this Agreement until the legal action or dispute is resolved.
The amounts due under any invoice, and all Actions and other data upon which such amounts are based, shall be final and binding on you for all purposes unless you object in writing to the amounts, Actions or other data (collectively, the “Payment Information”) and provides Substantiating Data within five (5) days of receipt of the disputed invoice in question. For purposes of this Agreement, “Substantiating Data” shall mean and include the following, for each disputed Action: (i) affiliate identifier; (ii) consumer identifiers, including user IP address, MAC address or mobile device ID, (iii) for Ad campaigns wherein specific lead qualifications are set forth in the IO, full details including all fields that were completed and provided to you in connection with the disputed Action, (iv) information on any patterns observed or documented by you, and (v) all reasons, stated in writing, for the suspected fraud or dispute. Atmosplay may use the foregoing data to notify other Advertisers and Publishers of fraudulent users and to generally increase the quality of Actions. If you fail to object in writing to an Action within the timeframe set forth in this paragraph, or if you fail to provide all the requisite Substantiating Data, you permanently waive and release any right to contest or otherwise challenge the Action, and must timely pay and/or reimburse Atmosplay for it.
You represent and warrant that you shall operate in compliance with all applicable laws, regulations, decisions and industry best practices—including, without limitation, consumer protection and truth-in-advertising laws and privacy regulations—relevant to (i) the Campaign and jurisdiction at hand, (ii) the Direct Marketing Association’s Best Practices for Online Advertising and Publisher Marketing. You further represent and warrant that you are familiar with the particular laws, regulations and industry customs in those countries in which you are promoting the Campaign or providing the App, that you have previous experience engaging in such business in such countries, and that you will comply with all such laws, regulations and industry customs. To be clear, you are responsible for understanding and complying with all laws, regulations and customs in both the jurisdiction where the advertising takes place, or the App is available, and the jurisdiction where you are located.
Subject to your compliance with these Terms of Service, Atmosplay grants you a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to access the Site, and to use the Services. No part of the Services, including the Site, may be reproduced, duplicated, copied, modified, sold, resold, distributed, transmitted, or otherwise exploited for any commercial purpose without the prior express written consent of Atmosplay. All rights not expressly granted in this Agreement are reserved by Atmosplay. Without limitation, this Agreement grants you no rights to the intellectual property of Atmosplay or any other party, except as expressly stated in this Agreement. The license granted in this section is conditioned on your compliance with this Agreement. Your rights under this section will immediately terminate if, in the sole judgment of Atmosplay, you have breached any provision of this Agreement.
By registering for an Account and providing your name, email, postal or residential/business address, and/or phone number through the Site, you expressly consent to receive electronic and other communications from Atmosplay, over the short term and periodically, including email communications. These communications will be about the Services, new product offers, promotions, and other matters. You may opt out of receiving promotional electronic communications at any time by following the unsubscribe instructions contained in each communication, or by contacting your Atmosplay Account representative, if one has been assigned to you. Individual communications about your Campaigns, Account, and payments will continue even if you unsubscribe from promotional communications. You agree that these electronic communications satisfy any legal requirements that communications or notices to you be in writing.
Atmosplay imposes certain restrictions on your use of the Site. Any violation of this section may subject you to civil and/or criminal liability. The following are expressly prohibited: (a) providing false, misleading, or inaccurate information to Atmosplay or any other person in connection with the Services; (b) impersonating, or otherwise misrepresenting affiliation, connection, or association with, any person or entity; (c) modifying or changing the placement and location of any advertisement posted through the Site or Services; (d) harvesting or otherwise collecting information about users, including email addresses and phone numbers; (e) without express written permission from Atmosplay, using or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Site or Services for any use, including without limitation use on Third Party Websites; (f) accessing content or data not intended for you, or logging into a server or account that you are not authorized to access; (g) attempting to probe, scan, or test the vulnerability of the Site or Services, or any associated system or network, or breaching security or authentication measures without proper authorization; (h) interfering or attempt to interfere with the use of the Site or Services by any other user, host, or network, including (without limitation) by submitting malware or exploiting software vulnerabilities; (i) forging, modifying, or falsifying any network packet or protocol header or metadata in any connection with, or transmission to, the Site or Services (for example, SMTP email headers, HTTP headers, or Internet Protocol packet headers); (j) while using the Site, using ad-blocking or other content-blocking software, browser extensions, or built-in browser options designed to hide, block, or prevent the proper display of online advertising; (k) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Company Parties in providing the Site or Services, including without limitation any fraudulent effort to modify software or any other technological mechanism for measuring the number of impressions generated by individual content and/or the overall Service to determine and/or audit advertising revenues and payments, if applicable; (l) creating additional accounts to promote your (or another's) business, or causing others to do so; or (m) paying anyone for interactions on the Services.
You represent and warrant that, when using the Services, you will obey all applicable laws and respect the intellectual property rights of others. Your use of the Services is at all times governed by and subject to copyright and other intellectual property laws. You agree not to upload, post, transmit, display, perform, or distribute any content, information, or other materials in violation of any third party's copyrights, trademarks, or other intellectual property or proprietary rights.
Atmosplay, “Atmosplay,” and the Atmosplay logo (collectively, the "Company Marks") are trademarks or registered trademarks of Atmosplay. Other trademarks, service marks, graphics, logos, and domain names appearing anywhere on, through, or in connection with the Services may be the trademarks of third parties. Neither your use of the Services nor this Agreement grant you any right, title, or interest in, or any license to reproduce or otherwise use, the Company Marks or any third-party trademarks, service marks, graphics, logos, or domain names. You agree that any goodwill in the Company Marks generated as a result of your use of the Services will inure to the benefit of Atmosplay, and you agree to assign, and do assign, all such goodwill to Atmosplay. You shall not at any time, nor shall you assist others to, challenge Atmosplay's right, title, or interest in, or the validity of, the Company Marks.
Exclusive of Advertiser Creative, all content and other materials available through the Site and Services, including without limitation the Atmosplay logo, design, text, graphics, and other files, and their selection, arrangement, and organization, are either owned by Atmosplay or are the property of Atmosplay's licensors and suppliers. Except as explicitly provided, neither your use of the Services nor this Agreement grant you any right, title, or interest in any such materials.
Each party agrees to use the other party's “Confidential Information” solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party's Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving party's performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing party. For the purposes of this Agreement “Confidential Information” includes, without limitation, the terms of this Agreement and any Insertion Order (including pricing) and information regarding any existing or contemplated Campaigns, services, products, processes, techniques, or know-how, or any information or data developed pursuant to the performance of this Agreement. Neither party shall: (i) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information of the other party; (ii) use any such Confidential information; and/or (iii) reproduce or otherwise copy any such Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to the receiving party or as required by applicable law. Each party agrees to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. These non-disclosure obligations shall survive termination or expiration of the Agreement.
Atmosplay’s Confidential Information
You acknowledge that all non-public information, data and reports (including, without limitation, the identities and contact information of Atmosplay Advertisers and Publishers, and all Campaign performance data, tracking and associated metrics) made available by Atmosplay hereunder or otherwise is Confidential Information and is proprietary to and owned by Atmosplay. You agree not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary or Confidential Information of Atmosplay in any manner.
For the term of this Agreement and one (1) year thereafter, you agree not to circumvent Atmosplay or this Agreement by soliciting, whether directly or indirectly, any Atmosplay Advertiser or Publisher; provided, however, that this prohibition shall not apply to any Advertiser or Publisher with which you can prove you had an active business relationship that precedes this Agreement. You agree not to use reverse engineering or tracing of Publisher traffic for means to directly identify and solicit Publishers.
Atmosplay, on behalf of itself and its licensors and suppliers, expressly disclaims any and all warranties, express or implied, regarding the Services, arising by operation of law or otherwise, including without limitation any and all implied warranties of merchantability, fitness for a particular purpose, non-infringement, no encumbrance, or title, in addition to any warranties arising from a course of dealing, usage, or trade practice. Neither Atmosplay nor its licensors or suppliers warrants that the Services will meet your requirements, or that the operation of the Services will be uninterrupted or error-free. Atmosplay disclaims all implied liability for damages arising out of the furnishing of the Services pursuant to this Agreement, including without limitation, mistakes, omissions, interruptions, delays, tortious conduct, errors, representations, or other defects arising out of the failure to the furnish the Services, whether caused by acts of commission or omission, or any other damage occurring. Atmosplay shall not be liable for any indirect, incidental, special, consequential, or punitive damages (including without limitation damages for lost profits or lost revenues), whether caused by the acts or omissions of Atmosplay, Company Parties, or Atmosplay users, or their agents or representatives.
Your Responsibility for Loss or Damage; Backup of Data.
You agree that your use of the Services is at your sole risk. You will not hold Atmosplay or its licensors and suppliers, as applicable, responsible for any loss or damage that results from your access to and/or use of the Services, including without limitation any loss or damage to any of your computers, mobile devices, including without limitations tablets and/or smartphones, or data. The Services may contain bugs, errors, problems, or other limitations.
LIMITATION OF LIABILITY
IN NO EVENT SHALL Atmosplay OR ITS LICENSORS OR SUPPLIERS BE LIABLE TO YOU FOR ANY CLAIMS ARISING FROM YOUR USE WITH THE SERVICES, INCLUDING WITHOUT LIMITATION FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO Atmosplay OR ITS LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN Atmosplay AND YOU. THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. Atmosplay’S MAXIMUM AGGREGATE LIABILITY TO YOU AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE THE TOTAL AMOUNT OF PAYMENTS MADE BY OR TO YOU PURSUANT TO THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE DATE UPON WHICH THE CLAIM AROSE.
Application of Disclaimers
The above disclaimers, waivers, and limitations do not in any way limit any other disclaimer of warranties or any other limitation of liability in any other agreement between you and Atmosplay or between you and any of Atmosplay's licensors and suppliers. Some jurisdictions may not allow the exclusion of certain implied warranties or the limitation of certain damages, so some of the above disclaimers, waivers, and limitations of liability may not apply to you. Atmosplay's licensors and suppliers are intended third-party beneficiaries of these disclaimers, waivers, and limitations. No advice or information, whether oral or written, obtained by you through the Services or otherwise shall alter any of the disclaimers or limitations stated in this section.
Without limiting any indemnification provision of this Agreement, you (the "Indemnitor") agree to defend, indemnify, and hold harmless Atmosplay and its subsidiaries, Publishers, Advertisers, vendors and suppliers, and each of their respective agents, partners, officers, directors and employees (collectively, the "Indemnitees") from and against any and all claims, actions, demands, causes of action, and other proceedings (individually, "Claim", and collectively, "Claims"), including but not limited to legal costs and fees, and providing sole and exclusive control of the defense of any action to Atmosplay, including the choice of legal counsel and all related settlement negotiations, arising out of or relating to: (i) your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (ii) your provision to Atmosplay or any of the Indemnitees of information or other data; (iii) your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (iv) your violation or alleged violation of any third party's copyrights, trademarks, or other intellectual property or proprietary rights.
The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify, or hold harmless any, each, and/or all Indemnitees. You may not settle any Claim without the prior written consent of the concerned Indemnitees.
If you and Atmosplay cannot resolve a dispute or other Claim through negotiations, either party may elect to have the dispute or Claim finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other(s).
The arbitration shall be commenced and conducted through the Hong Kong International Arbitration Centre (“HKIAC”) under the HKIAC Administered Arbitration Rules, as amended, revised, or updated from time to time. in accordance with the rules and regulations of that Association. Arbitration shall take place in Hong Kong. At the request of Atmosplay, arbitration proceedings will be conducted in secrecy. In such case all documents, testimony and records shall be received, heard and maintained by HKIAC in secrecy under seal, available for the inspection only by the parties and by their respective attorneys and their respective experts who shall have agreed, in advance and in writing, to receive all such information confidentially and to maintain such information in secrecy. The arbitrator shall be able to decree any and all relief of an equitable nature including, but not limited to, such relief as a temporary restraining order, a temporary and/or a permanent injunction, and shall also be able to award damages, with or without an accounting and costs. Except as otherwise provided for in this Agreement, the parties will pay for equally all administration and arbitrator fees. The arbitration may be conducted in person, through document submission, through telephone, or online. The arbitrator will issue a decision in writing, but need only provide a statement of reasons if requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Atmosplay may litigate to compel arbitration in court, to stay proceedings pending arbitration, or to modify, confirm, vacate, or enter judgment on the award entered by the arbitrator. The arbitrator shall award costs to the prevailing party (including, without limitation, fees, expenses, and reasonable attorneys' fees) at any time during the proceeding and upon request from either party, within 14 days of the arbitrator's ruling on the merits.
Restrictions Against Joinder of Claims
You and Atmosplay agree that any arbitration shall be limited to each Claim individually. You and Atmosplay agree that each may only bring claims against the other in your or Atmosplay's individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.
If this specific provision is found to be unenforceable in a Court of Competent Jurisdiction, the Claim will still be finally and exclusively resolved by binding arbitration upon the election of either party, and any election to arbitrate by one party shall be final and binding on the other(s). In addition: (1) no arbitration shall be joined with any other arbitration, and (2) there is no right for any Claim to be arbitrated on a class-action basis or to employ class action procedures, and (3) there is no right of authority for any dispute to be brought in a purported representative capacity on behalf either of the general public or any other individuals.
Remedies in Aid of Arbitration; Equitable Relief
This agreement to arbitrate will not preclude you or Atmosplay from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration, or confirm an arbitral award, from a Court of Competent Jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or Atmosplay from applying to a Court of Competent Jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. "Court of Competent Jurisdiction" means any court: (1) that has jurisdiction over the subject matter; and (2) that is located in Hong Kong.
Venue for any Judicial Proceeding
This Agreement, including without limitation this Agreement's interpretation, shall be treated as though this Agreement were executed and performed in Hong Kong, and shall be governed by and construed in accordance with the laws of Hong Kong without regard to its conflict of law principles. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party. Subject to the arbitration requirements above, the proper venue for any judicial action arising out of, relating to, or in connection with this Agreement will be the courts located in or nearest to Hong Kong. The parties stipulate to, and agree to waive any objection to, the personal jurisdiction and venue of such courts, and further expressly submit to extraterritorial service of process.
Without limiting any other provision of this Agreement, Atmosplay reserves the right to, in Atmosplay's sole discretion and without notice or liability, terminate this Agreement and/or any specific IO or Campaign, and deny use of the Services to you for any reason or for no reason at all, including without limitation for any breach or suspected breach of any representation, warranty, or covenant contained in this Agreement, or of any applicable law or regulation. This Agreement shall automatically terminate if you breach any of this Agreement's representations, warranties, or covenants. Such termination shall be automatic, and shall not require any action by Atmosplay.
You may terminate this Agreement and your rights under it at any time, for any or no reason at all, by providing fourteen (14) days written notice to Atmosplay of your intention to do so. Your termination of this agreement will be deemed invalid, if you continue to use of this Site or its Services.
Effect of Termination
Any termination of this Agreement automatically terminates all rights and licenses granted to you under this Agreement, including all rights to use any Creative that was not supplied by you, and the Services. After termination, Atmosplay reserves the right to exercise whatever means it deems necessary to prevent your unauthorized use of the Services, including without limitation technological barriers such as IP blocking and direct contact with your Internet Service Provider.
Upon termination, all rights and obligations created by this Agreement will terminate, except that the following Sections will survive any termination of this Agreement: Sections 1-43, all outstanding payment obligations under Section 5 that were incurred prior to termination, and 9–19.
All notices required or permitted to be given under this Agreement must be in writing. Atmosplay shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to Atmosplay. You agree that any notice received from Atmosplay electronically satisfies any legal requirement that such notice be in writing. You bear the sole responsibility of ensuring that your email address on file with Atmosplay is accurate and current, and notice to you shall be deemed effective upon the sending by Atmosplay of an email to that address.
Partial Invalidity. Should any part of this Agreement be declared invalid, void, or unenforceable by a Court of Competent Jurisdiction, such decision shall not affect the validity of any remaining portion of this Agreement, which shall remain in full force and effect, and the parties acknowledge and agree that they would have executed the remaining portion without including the part so declared by a Court of Competent Jurisdiction to be invalid, void, or unenforceable.
Amendments. This Agreement may only be modified by a written amendment signed by an authorized executive of Atmosplay, or by the unilateral amendment of this Agreement by Atmosplay along with the posting by Atmosplay of that amended version.
No Waiver. A waiver by either party of any term or condition of this Agreement, or any breach, in any one instance, will not waive that term or condition or any later breach.
Assignment. This Agreement and all of your rights and obligations under it will not be assignable or transferable by you without the prior written consent of Atmosplay. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.
Independent Contractors. You and Atmosplay are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement.
No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement, with the following exceptions: the Indemnitees, and Atmosplay's Advertiser and Publishers (to the extent expressly stated in this Agreement).
Injunctive Relief. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third-party rights by you would cause irreparable injury to Atmosplay and Atmosplay's licensors and suppliers, and would therefore entitle Atmosplay or Atmosplay's licensors or suppliers, as the case may be, to injunctive relief.
Headings; Defined Terms. The headings in this Agreement are for convenience only, and shall have no legal or contractual effect. The terms “Advertiser” and “Publisher,” as defined and used herein, are not mutually exclusive and it is possible for you to qualify as both an Advertiser and Publisher, dependent upon the circumstances.