TERMS & CONDITIONS

THIS TERMS & CONDITIONS (the “Agreement”) dated 13th day of January, 2015
PARTICIPATION IN THE VRAD SERVICES INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS (THE “AGREEMENT”). IF YOU DO NOT AGREE TO ALL OF THE TERMS IN THIS AGREEMENT AND ALL TERMS, POLICIES AND GUIDELINES INCORPORATED BY REFERENCE, INCLUDING BUT NOT LIMITED TO, VRAD’S PRIVACY POLICY, YOU MAY NOT ACCESS OR OTHERWISE PARTICIPATE IN THE VRAD ONLINE SERVICES.

“You” or “Your” means any entity identified in an enrollment form submitted by the same or affiliated persons, and/or any agency, network or other third party that has access to Your account and/or Your Online Services Data (as defined below), which will also be bound by the terms and conditions of this Agreement. The VRAD Online Services are available only to individuals who are at least 18 years old and to companies that are appropriately licensed and otherwise legally permitted to conduct business. You represent and warrant that (a), if you are an individual, you are at least 18 years old, and (b) if you are a company, that you are appropriately licensed and is legally permitted to conduct business.

This Agreement constitutes the entire and only agreement between You and VRAD, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the content, products or services provided by VRAD (the “Online Services”), and the subject matter of this Agreement. This Agreement may be amended at any time by VRAD without specific notice to You. The latest Agreement will be posted on VRAD.com (the “Site”), and You should review this Agreement prior to using the Site or the Online Services.

  1. Description of Online Services. If you are a publisher during the Online Services Term (as defined below), VRAD will serve to You advertisements provided by third party advertisers (“Online Services Ad(s)”), for display on the app(s) which use the Online Services (“Online Services App(s)”), based upon the criteria selected by You and/or Your advertisers via the protocol and/or user interface provided by VRAD for accessing the Online Services. This protocol and/or user interface may be updated by VRAD from time to time without notice to you (“Online Services Interface”). If you are an advertiser during the Online Services Term, you will provide Online Services Ads for display on the Online Services Apps.

  2. Implementation of Online Services. You will implement the Online Services in a manner that complies with the technical and implementation requirements provided on the Site or in writing by VRAD to You from time to time, including those instructions contained in the documentation regarding the Online Services Interface. Without limiting the foregoing, You acknowledge and agree to the following:

    • Online Services Obligations. In order for the Online Services to work correctly, You must provide the following information with every ad request: (i) a unique device identifier or other device ID, (ii) Ad unit ID, mapped to the application that is in use by the end user, (iii) device type, (iv) language, (v) OS version, (vi) SDK version, (vii) device model, (viii) display type and (ix) country. In addition, for any video ad request You must provide statistics about videos and video playback required by VRAD such as: start/bootup information, cancel, amount played/session length information, memory on device used for our video cache, videos cached on a device and complete view event. You must also notify VRAD when an application is opened by the user. You will be solely responsible for all, without limitation, Online Services Ad content, Online Services Ad information, Online Services Ad URLs, editorial, text, graphic, audiovisual, and other content and any other information You enter into the Online Services, whether generated by or for You (“Online Services Data”). You will protect any Online Services accounts, usernames or passwords and take full responsibility for Your own, and third party, use of any Online Services accounts, usernames or passwords. You will obtain VRAD’s prior written consent (to include email) for any third party use of the Online Services except for (i) a third party’s use solely to provide analytics information for Your Apps and (ii) a bona fide advertising agency’s use. If You permit any third party to access your Online Services account, you agree that You are liable for any such third party usage. If you permit a third party to provide to VRAD post-install data on Your behalf using “Post-Install Tools”, which include Post-Install Analytics, Retargeting and Newsfeed, you must generate a unique authentication token that must be used in connection with such third party’s provision to VRAD of such data, which may include in-app purchase (IAP) information. You will not permit access to the third party unless and until it agrees to comply with VRAD’s terms and conditions. Any data collected or accessed through the Online Services must be directly accessible by VRAD. Your use of an intermediary who has sole direct access to user data arising from the Online Services is prohibited.

    • Policies. VRAD will have no obligation to process a request for Online Services Ads that are not sent in compliance with the requirements of this Agreement. While VRAD does not intend, and does not undertake, to monitor the Online Services Ads and/or Online Services Data, if VRAD is notified by You or otherwise becomes aware and determines in its sole discretion that the Online Services Ads and/or Online Services Data or any portion of the Online Services Ads and/or Online Services Data or Your trade names, trademarks, service marks, logos, domain names, and other distinctive brand features: (i) violates the intellectual property rights or any other rights of any third party; (ii) violates any applicable law or is subject to an injunction; (iii) is pornographic, obscene or otherwise violates this Agreement; (iv) is being distributed by You improperly; or (v) may create liability for VRAD, VRAD may reject, remove, withdraw from, not display or cease displaying that Online Services Ad and/or Online Services Data from the Online Services entirely with no liability to VRAD. You will have and abide by an appropriate privacy policy and will comply with all applicable laws relating to the collection and use of information from end users of Online Services App(s). You must post a privacy policy in each Online Services App and such policy must provide notice of Your use of a cookie or other mechanism for a third party to collect end user traffic data.

    • Prohibited Actions. You will not, and will not allow any third party to: (a) directly or indirectly access, launch and/or activate the Online Services through or from, or otherwise incorporate the Online Services in, any software application, website or other means other than the Online Services App(s), and then only to the extent expressly permitted herein; (b) transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co- branding, timesharing, service bureau or other unauthorized purposes the Online Services or access thereto (including, but not limited to ads, including without limitation Online Services Ads, or any part, copy or derivative thereof); (c) directly or indirectly generate queries, or impressions of or clicks on ads, including without limitation Online Services Ads, through any automated, deceptive, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro Online Services, and Internet agents); (d) encourage or require end users or any other persons, either with or without their knowledge, to click on ads, including without limitation Online Services Ads, through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent; (e) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Online Services, VRADʼs then current protocol for accessing and implementing the Online Services (the “VRAD Protocol”), or any other VRAD technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation; (f) remove, deface, obscure, or alter VRADʼs copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of the Online Services, the VRAD Protocol, or any other VRAD technology, software, materials and documentation; (g) create or attempt to create a substitute or similar service or product through use of or access to any of the Online Services or proprietary information related thereto; or (h) utilize any feature or functionality of the Online Services, or include anything in Online Services Data or Online Services Ads, that could be so utilized, to personally identify and/or personally track individual end users or any other persons.

    • Restrictions. You must use the Online Services only for serving advertisements and promotions to Online Services Apps. You may use the Online Services only with free Apps. You may not use the Online Services to serve other content. You may not serve advertisements that interfere with the correct operation of the userʼs mobile device. You may not use the Online Services with Online Services Apps that: (i) promote or depict illegal activity or violence, (ii) advocate against a particular group , (iii) infringe a third party’s rights, (iv) introduce viruses, spyware, and malware, (v) contain sexually explicit content, (vi) depict illicit drugs and drug paraphernalia, (vii) promote online casinos and gambling, (viii) promote weapons or ammunition, (ix) promote hard alcohol, (x) could harm minors in any way, or (xi) contain any content that is illegal, promotes illegal activity, misleading, inaccurate, or infringes on the legal rights of others.

    • No Endorsement. VRAD does not represent or endorse any ads, links, content, advice, opinion, offer, proposal, statement, data or other information from any third party products/services (“Disclaimed Content”) that is displayed or distributed through Online Services. VRAD hereby disclaims any liability or responsibility for any Disclaimed Content. VRAD reserves the right, but will have no responsibility, to edit, modify, refuse to post or remove any Disclaimed Content, in whole or in part, that in VRAD, in its sole and absolute discretion, deems is objectionable, erroneous, illegal, fraudulent or otherwise in violation of this Agreement.

  3. Online Services Term. This Agreement will be effective as of the date VRAD activates Your Online Services account and will continue until terminated as provided in this Agreement (the “Online Services Term”). You may terminate this Agreement, with or without cause, at any time by sending written notice of Your desire to cancel Your participation in the Online Services to [email protected] This Agreement will be deemed terminated within ten (10) business days of VRADʼs receipt of Your notice. If You violate this Agreement, VRAD may in its sole discretion, without notice, terminate this Agreement, or suspend or terminate the participation of Your Online Services App in all or part of the Online Services. In addition, VRAD may terminate this Agreement, or suspend or terminate the participation of Your Online Services App in all or part of the Online Services, with or without cause, upon thirty (30) days’ prior notice.

  4. Online Services Advertiser Obligations. You will be solely responsible for all matters related to Your third party advertisers who provide advertisements to You in connection with the Online Services (“Online Services Advertisers”), including without limitation the solicitation and trafficking of Online Services Ads, billing and payment of Online Services Advertisers, providing all technical support services to Online Services Advertisers, and handling all other inquiries and disputes of any type or nature.

  5. Online Services Fee. Some of the services in the Online Services require payment of fees. VRAD reserves the right to change its price list and to institute new charges at any time, upon thirty (30) days prior notice to You, which may be sent by email or posted on the Site. If You are an advertiser, You will pre-pay all applicable fees, as described on the Site. If You are an advertiser and choose to run a Cost Per Install (“CPI”) campaign without having properly integrated the VRAD SDK, You will be charged $0.04 per click for all the clicks delivered in that campaign, and the campaign will be automatically terminated when detected. Impressions and clicks are tracked instantly. Installs are tracked whenever a user opens the application they have downloaded. VRAD will keep the install loop open for a period of 21 days. During this time, installs will still be reported for campaigns that might be off (not displaying any new impressions) but the advertiser will still be accountable for the install and the publisher will be paid for installs coming from clicks that they delivered in the past. This only affects CPI campaigns, not Cost Per Click (“CPC”). Fees for video ads will be on a Cost Per Completed View (“CPCV”) basis. If You are an advertiser, you must make a minimum bid of $0.02 CPCV. Fees for VRAD’s Retargeting tool will be on a CPC basis. If You are a publisher of network advertising campaigns, You will receive Earned Revenue. “Earned Revenue” means revenue generated from advertising campaigns displayed on publisher’s Online Services App, less taxes, agency commissions, carrier and/or partner fees, and any allowances actually made or taken for returns, cash discounts or promotional allowances. For clarity, it is understood that Earned Revenue shall not include revenues received from the sale, use or other disposition of cross-promotional advertisements (“Cross-Promos”) displayed on publisher’s Online Services App or advertisements displayed on publisher’s Online Services App resulting from direct transactions between publisher and the application developer (“Direct Deals”). Revenue calculation for publisher stated in attachment A is for reference, VRAD reserves the rights to changes the prices based on the market value. The Earned Revenue to be received by publisher shall be determined on the first business day of each calendar month, on which day those revenues accrued to publisher’s account forty-five (45) or more days earlier shall become eligible to be paid. Payments to publisher shall be sent by VRAD only if publisher’s earned balance is greater than or equal to $100 (One Hundred Dollars, US). If publisher’s earned balance is less than \$100, no payment shall be sent until the following calendar month, on the first Monday of which VRAD shall make the aforesaid determination anew. For clarity, it is understood that if You are a publisher, You will be paid your Earned Revenue in full, even if VRAD does not receive receipt of full payment from the applicable advertiser. Payment shall be calculated solely based on records maintained by VRAD. No other measurements or statistics of any kind shall be accepted by VRAD or have any effect under this Agreement. VRAD shall not be liable for any payment based on (i) any fraudulent impressions generated by any person, robot, automated Online Services or similar device or for fraudulent impressions similarly generated on any advertisements, as reasonably determined by VRAD; (ii) impressions commingled with a significant number of fraudulent impressions or fraudulent clicks described in (i) above; or (iii) any breach of this Agreement by You. Notwithstanding anything to the contrary in this Agreement, VRAD shall have no liability to You or to any third party related to the use of the Online Services to facilitate Cross-Promos or Direct Deals; such use of the Online Services is entirely at Your own risk.

  6. License to Online Services Interface. VRAD grants to You a limited, revocable, non-transferable, non-exclusive and non-sublicensable license during the Online Services Term to use the Online Services Interface solely for the purpose of transmitting Online Services Requests and other required information and receiving Online Services Results Sets solely to the extent permitted hereunder. Except to the limited extent expressly provided in this Agreement, VRAD does not grant, and You will not acquire, any right, title or interest (including, without limitation, any implied license) in or to any VRAD intellectual property rights; and all rights not expressly granted herein are reserved to VRAD.

  7. Data Use. VRAD may retain and use data and other information, subject to the terms of its Privacy Policy.

  8. Confidentiality; Publicity. Each party agrees not to disclose the other party’s Confidential Information without the other partyʼs prior written consent. “Confidential Information” includes without limitation: (a) all software, technology, programming, specifications, materials, guidelines and documentation relating to the Online Services, including the existence and content of this Agreement and any information provided pursuant to the Agreement; (b) any statistics relating to the performance of the Online Services; (c) any other information designated in writing by either party as “Confidential” or an equivalent designation; and (d) information disclosed under circumstances that a reasonable person should know such information is confidential/proprietary. Confidential Information does not include information that has become publicly known through no breach by the receiving party, or information that has been (i) independently developed without access to the disclosing party’s Confidential Information as evidenced in writing; (ii) rightfully received by the receiving party from a third party; or (iii) required to be disclosed by law or by a governmental authority. Neither party will use the other party’s name and logo in any news release, public announcement, advertisement, or other form of publicity without the prior written consent of the other party (which includes email), except that either party may use the other party’s name and logo on such party’s website and in publicity that announces the parties are working together. In addition, VRAD may use any content used with the Online Services in any form of publicity.

  9. Disclaimer. EXCEPT AS EXPRESSLY STATED HEREIN, VRAD DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY REGARDING THE ONLINE SERVICES TO THE FULL EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE ONLINE SERVICES ARE PROVIDED “AS-IS” AND WITHOUT WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF PERFORMANCE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FURTHER, VRAD DOES NOT MAKE, AND HAS NOT MADE, ANY REPRESENTATION OR WARRANTY THAT THE ONLINE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR VIRUS-FREE OR THAT THE OPERATION OF ANY SERVICE WILL BE UNINTERRUPTED. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.

  10. Limitation of Liability. IN NO EVENT WILL VRAD, ITS SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE “VRAD PARTIES”), BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY UNDER ANY THEORY FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS, THAT RESULT FROM YOUR USE OF, OR INABILITY TO USE, THE SOFTWARE OR ANY SERVICE, EVEN IF VRAD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. THE VRAD PARTIES’ AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT OR ANY SERVICE WILL NOT EXCEED THE AMOUNT YOU HAVE PAID TO VRAD IN THE PAST SIX MONTHS FOR SUCH SERVICES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, THE VRAD PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

  11. Representations and Warranties. You represent and warrant that: (i) You have and will maintain throughout the Online Services Term all end user consents and all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to Online Services Ads or Online Services Data to permit VRAD to perform the Services contemplated under this Agreement (including without limitation any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of Online Services Ads or Online Services Data); (ii) You will not advertise anything illegal or engage in any illegal or fraudulent business practice; (iii) all of the information provided by You to VRAD to enroll in the Online Services is correct and current; (iv) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (v) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in Your performance of any acts hereunder. VRAD represents and warrants that: (i) it has the power and authority to grant the rights and perform the obligations to which it commits herein; and (ii) its Online Services Interface will not knowingly violate the intellectual property rights of any third party.

  12. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions thereof. Neither partyʼs waiver of any default is a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the partiesʼ intention, and remaining provisions of the Agreement will remain in full effect. You may not assign any of Your rights hereunder and any such attempt is void (except to Your successor in the event of Your merger, acquisition or sale of all or substantially all or Your assets). VRAD and You are not legal partners or agents, but are independent contractors. The terms and conditions contained in this Agreement that by their sense and context are intended to survive the performance hereof by the parties hereunder.

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