Please read this document carefully. By clicking “I accept” or using the Service (defined in Section 1) in any way, you hereby accept, on behalf of yourself and your organization ("Developer"), these Terms of Service ("Agreement") with Blu Trumpet, a service of Breaktime Studios, Inc., a Delaware company with offices at 100 Montgomery Street, San Francisco, CA 94104
1. The Service.
1.1. Access to Service.
Company grants Developer permission to access Company’s mobile advertising network (the “Service”) through its web-based console (the “Console”) for the purpose of (i) displaying mobile advertisements (“Ads”) for Developer’s mobile applications (“Apps”); and/or (ii) publishing Ads within Developer’s Apps.
Company grants Developer a non-exclusive, worldwide right and license to install and use Company’s software development kit (“SDK”) or the purpose of displaying Ads supplied by Company and tracking App installations. Developer shall use Company’s most recent SDK.
Developer shall not use the Service, the Console, or the SDK for any purpose except as expressly permitted above; nor shall it reverse engineer, decompile, redistribute, or make derivative works from the Service, the Console, or the SDK.
To access the Service, Developer shall first register with Company. Developer shall provide complete and accurate registration information, and shall keep such information updated. Developer shall safeguard Developer’s password and not permit unauthorized persons to use its account. Developer shall immediately notify Company of any unauthorized access to its account.
Company reserves the right to change or discontinue the Service at any time with or without notice. Company may also modify this Agreement by providing notice of a new agreement to Developer. Following Developer’s continued use of the Service after notice or acceptance of the new Agreement, Developer shall be bound by the terms of the new agreement, which shall apply retroactively.
Developer shall direct any inquiries concerning any advertising campaign provided through the Service to Company, and shall not communicate directly with any other developers concerning such advertising campaign.
2. Placing and Publishing Ads.
2.1. Placing Ads.
Developer may place Ads using an order form in the Console or other means provided by Company (each, an “Order”). Developer shall provide advertising assets (“Assets”) for its Ads, which may include text, creative, or a link to Developer’s App. Developer grants Company a non-exclusive, worldwide, sublicenseable right and license to use, publicly display and perform, transmit, and distribute, during the Term, the Assets for the purpose of creating Ads and displaying them to end users.
2.2. Publishing Ads.
Developer may publish Ads in its App that Company chooses to provide to Developer. In publishing Ads, Developer shall not (i) modify, truncate, or obscure any Ad; (ii) engage in any fraudulent, misleading, deceptive, or illegal practice; or (iii) violate any of the terms or conditions of the App’s platform.
3. Fees; Revenue Share; Developer Account.
3.1. Buy-side Ads.
Developer shall pay Company the fee per Download set forth in the Order (“Fees”), according to the payment terms set forth therein, with respect to Developer’s Apps advertised through the Company Service. A “Download” occurs when an end user, in response to an Ad, downloads a Developer App onto a mobile device and launches the App within seven (7) days of the initial download. Company’s calculation of Downloads is final and binding. Developer must pay for all Downloads and Company makes no representations or warranties with respect to their quality or validity.
3.2. Sell-side Ads.
Company shall pay Developer the percentage of Net Revenue communicated to Developer in the Console (the “Revenue Share”), with respect to third-party Ads displayed within Developer’s App. “Net Revenue” means all revenue actually collected by Company from the Ads displayed on Developer’s App less (i) any taxes, (ii) any adjustments for chargebacks, refunds, or bad debt; and (iii) any invalid actions or downloads, as determined by Company in its sole discretion.
3.3. Developer Account.
Company shall maintain an account for Developer (the “Developer Account”) for the purpose of receiving Fees and/or paying Revenue Share. Company may deduct Fees from the Developer Account at any time. Company shall release Revenue Share into the Developer Account on a monthly basis. Company may adjust Revenue Share payments to reflect permitted deductions. Developer may request cash payments from the Developer Account on a monthly basis in amounts greater than or equal to U.S. $50.00. Company shall pay Developer as instructed, provided that Company (i) shall not be required to release amounts relating to Revenue Share until thirty (30) days after they have been credited to the Developer Account, and (ii) may withhold amounts to pay anticipated Fees for any live or completed campaigns.
In the event that Developer fails to pay outstanding Fees, Company shall be entitled to its costs of collection (including reasonable attorneys’ fees) plus interest at 1.5% per month or the maximum rate allowable by law. If Developer disputes any Fees or Revenue Share, it shall notify Company within fifteen (15) days of month-end following the month in which such Fees or Revenue Share are first posted in the Console or otherwise reported to Developer, after which time Developer may not dispute any Fee or Revenue Share. For the avoidance of doubt, the date on which Revenue Share and/or Fees are first posted in the Console or otherwise reported to Developer is a date antecedent to the date on which Revenue Share is finally released to Developer. In the event of a Fee or Revenue Share dispute, Company and Developer agree to work together in good faith to resolve the dispute.
Company may provide daily reporting regarding Fees and Revenue Share through the Console. Developer agrees and acknowledges that any daily reports provide estimates only that are subject to change.
4. End User Data and Privacy.
5. Term and Termination.
This Agreement will commence on the date Developer first accepts it and will continue until terminated in accordance with the terms herein (“Term”). Either party may terminate this Agreement by providing thirty (30) days written notice of termination to the other party. Company may suspend or terminate Developer’s access to the Service for any breach of this Agreement. Within forty-five (45) days after the expiration or termination of this Agreement, each party shall pay any outstanding amount due to the other party (e.g., Fees or Revenue Share). Sections 1.3, 3.4, 4.1, 5, 7, 8, and 9 shall survive termination of the Agreement.
6. Representations, Warranties, and Covenants.
Each party represents and warrants that it has the authority to enter into and perform this Agreement. Developer represents and warrants that its Assets and Apps do not: (i) contain content that is defamatory, hateful, harassing, discriminatory, or pornographic; (ii) promote illegal substances or activities; (iii) contain fraudulent, misleading, or deceptive content; (iv) contain any malware, viruses, Trojan horses, or other harmful code; (v) infringe any third party’s rights, including intellectual property rights and privacy rights; or (vi) violate the terms of service of the relevant mobile platform.
Each party shall indemnify, defend, and hold harmless the other party from and against all losses (including reasonable attorneys’ fees and expenses) (“Losses”) that arise from any third party claim asserting the breach of the party’s obligations, covenants, representations, or warranties under this Agreement. In addition, Developer shall indemnify, defend, and hold harmless Company from and against all Losses arising from any third party claim asserting that its Assets or Apps violate or infringe any law or third party right, including any intellectual property or privacy right.
8. Disclaimer of Warranties; Limitation of Liability.
Except as expressly set forth in this Agreement, neither party makes, and each party expressly disclaims, any and all warranties, including implied warranties of title, non-infringement, merchantability, or fitness for a particular purpose. For clarity, the Service and the Ads are provided “AS IS.” Neither party shall be liable for any interruption or inoperability of the Internet, technical malfunction, computer error, data corruption, or information loss. Company shall not be liable for Developer’s Assets or Apps.Except for each party’s indemnification obligations (Section 7) and payment obligations (Section 3), in no event will (i) either party be liable for any indirect, special, incidental, or consequential damages, even if it has been advised of the possibility of damages; or (ii) a party’s aggregate liability for any and all claims exceed amounts paid or payable by Company or Developer under this Agreement within the twelve (12) months preceding such claims.
Each party is an independent contractor of the other and neither is an employee, agent, partner, or joint venturer of the other. This Agreement shall be governed by the laws of San Francisco; San Francisco County, San Francisco. Any action arising out of or relating to this Agreement shall be commenced in the state or federal courts located in California. If any provision of this Agreement is declared unenforceable or invalid by a court of competent jurisdiction, that provision will be struck or limited to the minimum extent necessary. The failure of Company to exercise any right shall not be deemed a waiver of any further rights. This Agreement constitutes the entire understanding of the parties and supersedes all previous understandings relating to the subject matter hereof. No modification of this Agreement will be binding except as set forth in Section 1 or documented in a writing signed by both parties. No third party beneficiaries are intended.