Terms and Conditions

These general terms and conditions (“Agreement”) outline the terms and conditions by which Ogury Ltd, a company incorporated in England and Wales under Company Number 08904951 with its registered office at 3rd Floor, Classic House, 174-180 Old Street, London EC1V 9BP, United Kingdom (“Ogury”) shall supply the Services (defined below) to you (“Publisher”) in conjunction with the Digital Properties (as defined below).

The terms of this Agreement are applicable to all Services, which may be provided, either together or separately. Any particular Service shall also be subject to the specific terms and conditions set out in the relevant Service Addendum which shall be deemed to form part of this Agreement. Ogury reserves the right to modify this Agreement at any time without prior notice.

Please read this Agreement carefully before signing up to use the Services (defined below). By signing up to our Services and using the Site (defined below), you warrant you have the right to agree to, and accept and perform the obligations set out in this Agreement on behalf of Publisher.

1. Definitions and Interpretation

1.1. Definitions

– 1.1.1. Adapter means the specific code developed by Ogury and made available to Publisher, to enable Ogury to bid on Publisher’s inventory through a Mediation Platform or Header Bidding Technology.

– 1.1.2. Application means the Publisher’s mobile application(s) notified in advance to, and approved by, Ogury in relation to which Ogury provides the Services;

– 1.1.3. Confidential Information means any (i) business and technical information related to the discloser’s operations, including but not limited to: products, procurement, project plans, requirements, business terms, people, processes, information systems, facilities, logistics, finances, sales, and marketing; and (ii) information that, given the circumstances surrounding its disclosure or the nature of the information a reasonable person would conclude to be confidential. It shall not include information that: (a) at the time of disclosure is published or otherwise in the public domain; (b) after disclosure becomes part of the public domain other than through a breach of confidence or confidentiality; (c) was known to the recipient prior to receipt from the discloser, provided such prior knowledge can be substantiated by documentary evidence antedating the disclosure by the discloser; (d) is disclosed to the recipient by a third party (other than employees or agents of either party) that, in making such information available to the recipient, is not in violation of any obligation of confidentiality to the discloser; or (e) is independently developed by the recipient, provided such independent development can be substantiated by documentary evidence predating the disclosure by the discloser;

– 1.1.4. Digital Property means an Application or Website;

– 1.1.5. End-User means individual users of devices via which they access Digital Properties in relation to which the Services are provided;

– 1.1.6. Header Bidding Technology means a technology offered by a third-party header bidding technology provider that enables Publisher to open its inventory simultaneously to several demand partners (such as Ogury), who will be able to real-time bid to match advertisements with Publisher’s inventory;

– 1.1.7. Impression means a single instance of displaying an Ogury advertiser advertisement to a bona fide End-User on such End-User’s wireless device. “Impression” excludes any advertisements displayed in Digital Properties in breach of clause 3 of the Monetization Service Addendum (“Invalid Impression”). Ogury shall determine the validity of the Impressions or other forms of engagement with advertisements in its reasonable discretion using industry accepted third-party and internal reporting tools. Invalid Impressions will not be counted towards the Publisher’s Net Earnings;

– 1.1.8. Mediation Platform (or Ad Server): a platform that enables the Publisher to send incoming ad requests to several demand partners (such as Ogury) and help ensure the Publisher to find available ad sources to fill the requests for their inventory;

– 1.1.9. Ogury Technology means the Site, SDK, Tags, reporting API, Adapter and any other technology made available to Publisher to access the Services;

– 1.1.10. Publisher Trade Marks means the Publisher’s trade marks, whether registered or not, including Publisher’s company name, trade names and/or logos used to market the Digital Properties;

– 1.1.11. SDK means the documentation, software (source or object code), applications, sample code, tools, libraries, APIs, data, files, plug-ins, and other materials, including updates or upgrades, made available by Ogury to Publisher;

– 1.1.12. Services means the services provided by Ogury to Publisher in relation to the Digital Properties as more particularly outlined in a product addendum;

– 1.1.13. Site means via our website made available by Ogury to sign up for and use the Services (including related tools), currently https://publishers.ogury.co/identity/login;

– 1.1.14. Tags means the Ogury JavaScript or other code to be incorporated into Websites to access the Services;

– 1.1.15. Updates means all modifications to the SDK, and, if applicable, Header Bidding Technology providers’ and Mediation Platform’s SDK, including any upgrades, patches, enhancements, custom builds, or fixes and/or updates to Adapters and/or Tags; and

– 1.1.16. Website means Publisher’s mobile website(s) notified in advance to, and approved by, Ogury in relation to which Ogury provides the Services.

1.2. Interpretation

– 1.2.1. Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.

– 1.2.2. Words in the singular shall include the plural and vice versa.

– 1.2.3. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

– 1.2.4. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

– 1.2.5. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. Use of the Services

2.1. Use of the Services is subject to Ogury’s prior approval and Publisher’s continued compliance with this Agreement. Ogury reserves the right to refuse to provide the Services or terminate Publisher’s right to use the Services at any time in Ogury’s sole discretion. Publisher’s continued use of the Services shall be deemed acceptance of this Agreement.

3. Licence

3.1. Licence. Subject to the terms of this Agreement (including any applicable Service Addendum), Ogury grants Publisher, a revocable, limited, personal, non-sublicensable, worldwide, non-exclusive, non-transferable, royalty-free, licence to use the Ogury Technology solely in conjunction with the Digital Properties in order to use the Ogury Technology.

3.2. Implementation. Publisher agrees, to implement the SDK, Tags and/or Adapters, and if applicable Header Bidding Technology provider’s SDK and/or Mediation Platform’s SDK, as appropriate, in accordance with the technical specifications, policies and any other reasonable directions provided by Ogury as amended from time to time.

3.3. Updates. Updates provided to Publisher shall immediately become part of the Ogury Technology and subject to this Agreement. Publisher shall promptly implement all Updates provided by Ogury and, if applicable, by Header Bidding Technology providers and/or Mediation Platforms. Any obligation of Ogury to Publisher arising in relation to Publisher’s use of the SDK, Tag and/or Adapter is limited to the then-current version of the SDK, Tag and Adapter, and/or the Header Bidding Technology provider’s and Mediation Platform’s SDK.

3.4. Support. Unless provided for under a Service Addendum or otherwise agreed in writing Ogury shall not be obliged to provide Publisher any support in relation to the installation of the SDK, Tags or any Updates.

4. Ownership

4.1. Publisher Rights. As between Publisher and Ogury, Publisher retains all right, title and interest in and to the Digital Properties, including all intellectual property rights. All rights not expressly granted by Publisher to Ogury herein are hereby reserved by Publisher.

4.2. Ogury Rights. As between Ogury and Publisher, Ogury retains all right, title and interest in and to the Services, Ogury Technology and any materials created, developed, collected or provided by Ogury in connection with this Agreement, including all intellectual property rights. All rights not expressly granted by Ogury to Publisher herein are hereby reserved by Ogury.

5. Publisher Obligations

5.1. Publisher represents and warrants that: (a) all of the information Publisher has provided and shall in the future provide to Ogury is accurate and current; (b) it has all necessary and legal rights, powers, and authority to accept and be bound by this Agreement and to perform the acts required of Publisher hereunder; (c) it is in compliance with all applicable laws; (d) where required for the Services, it will implement the Ogury Technology in accordance with the documentation and policies made available here by Ogury from time to time; (e) the Applications shall comply with all rules and policies of the Google Play Store or iOS App Store as appropriate (whether the Application itself has been downloaded via those outlets or not); and (f) its email address for notices will be kept up to date on the Site.

5.2. Ogury represents and warrants that: (a) all of the information Ogury has provided and shall in the future provide to Publisher is accurate and current; (b) it has all necessary and legal rights, powers, and authority to accept and be bound by this Agreement and to perform the acts required of Publisher hereunder; and (c) it is in compliance with all applicable laws.

5.3. If the Publisher is not the owner of the Digital Properties on which the advertisers’ advertisements are displayed through the Services, the Publisher represents and warrants that: (a) it holds all the necessary rights to the Digital Properties in order to enter into this Agreement; and (b) shall be responsible for ensuring that the publisher(s) and/or owner(s) of the Digital Properties comply with all relevant terms of this Agreement as if a party thereto.

6. Restrictions

6.1. Other than as expressly set forth in this Agreement, Publisher shall not, directly or indirectly, nor shall Publisher authorize or otherwise permit any third party, to:

– 6.1.1. reproduce, lease, transfer, license, resell, assign, distribute or otherwise commercially exploit or make available to any third party the Services and/or the Ogury Technology;

– 6.1.2. distribute any source code provided as part of the Ogury Technology;

– 6.1.3. modify, alter or create any derivative works of the Ogury Technology;

– 6.1.4. reverse engineer, disassemble, decompile or attempt to uncover the source code for or any trade secrets related to the Services and/or Ogury Technology except and only to the extent that such activity is expressly permitted by applicable law;

– 6.1.5. remove, alter or obscure any proprietary rights or notice on the Services and/or Ogury Technology;

– 6.1.6. use the Ogury Technology or the Services other than for their intended purposes;

– 6.1.7. use the Ogury Technology or Services to create (or facilitate the creation of) any product or service that is in competition with Ogury; and

– 6.1.8. include the Ogury Technology connection with any mobile properties or other online services or applications other than the Digital Properties, unless agreed in writing by Ogury.

6.2. Publisher undertakes not to create unlawful, defamatory, threatening, offensive or otherwise objectionable content regarding Ogury.

7. Term and Termination

7.1. This Agreement commences on the date when Publisher signs up to the Services via our Site and shall continue until terminated in accordance with this Agreement.

7.2. Unless otherwise agreed in writing or stated in any Service Addendum:

– 7.2.1. Publisher may terminate this Agreement, in relation to any or all Services, at any time for convenience by giving written notice to Ogury; and

– 7.2.2. Ogury may terminate this Agreement in relation to any or all Services, at any time in its sole discretion with or without notice to Publisher. Publisher will cease use of the Ogury Technology and Services and, upon request, certify the same in writing to Ogury within five (5) business days of notification of termination.

8. Confidentiality

Each party agrees not to disclose Confidential Information without the other party’s prior written consent and to use at least the same degree of care to prevent unauthorized use and disclosure of Confidential Information as it uses with respect to its own confidential information of like importance (but in no event less than a reasonable degree of care).

9. Account Identifiers

When setting up Publisher’s online Ogury account, Publisher will choose unique and personal account identifiers, including a login and password. The login (i) identifies the account; and (ii) allows Publisher to log in to its account on the Site or otherwise access the Services. The login cannot be changed and identifies Publisher’s account uniquely and permanently. The password is specific to the account and Publisher is not authorized to sell, transmit, sublicense or disclose it to third parties. Publisher is responsible for Publisher’s password and undertakes to keep it confidential. Publisher is fully responsible for the activity on Publisher’s account. Passwords can be modified by Ogury in the case of loss or theft of passwords, or if Publisher suspects that a third party might be able to use them. Publisher is responsible for the accuracy of the information associated with the account (especially the contact details and bank details). Ogury shall not be responsible for any unauthorized access to Publisher’s account, or for any modification, deletion or impairment affecting all or part of the information Publisher will give Ogury in the context of using Publisher’s access account.

10. Data Protection and Privacy

The parties shall comply with the terms of the Data Processing Annex with regard to the processing of any personal data (or equivalent term under applicable law).

11. Set-off

Ogury may at any time, without notice to Publisher, set off any liability of Publisher to Ogury against any liability of Ogury to Publisher, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Agreement. If the liabilities to be set off are expressed in different currencies, Ogury may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by Ogury of its rights under this clause shall not limit or affect any other rights or remedies available to it under this Agreement or otherwise.

12. Exclusions and Limitation of liability

12.1. Except as expressly and specifically provided in this Agreement:

– 12.1.1. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and

– 12.1.2. the Services and the Ogury Technology are provided to Publisher on an “as is” basis.

12.2. Nothing in this Agreement excludes the liability of Ogury:

– 12.2.1. for death or personal injury caused by Ogury’s negligence; or

– 12.2.2. for fraud or fraudulent misrepresentation.

12.3. Subject to clause 12.1 and clause 12.2:

– 12.3.1. Ogury shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and

– 12.3.2. Ogury’s total aggregate liability in contract (including in respect of the indemnity at clause 13.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the lesser of (i) USD 100,000 (one hundred thousand US Dollars); or (ii) the fees paid by Ogury to Publisher during the 12 months immediately preceding the date on which the claim arose.

12.4. The parties acknowledge and agree that the allocation of risk in this Agreement is reflected in the level of fees payable under this Agreement.

13. Indemnification

13.1. Publisher shall defend, indemnify and hold harmless Ogury against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Publisher’s use of the Services and/or Ogury Technology, provided that:

– 13.1.1. Publisher is given prompt notice of any such claim;

– 13.1.2. Ogury provides reasonable co-operation to Publisher in the defence and settlement of such claim, at Publisher’s expense; and

– 13.1.3. Publisher is given sole authority to defend or settle the claim.

13.2. Ogury shall defend Publisher, its officers, directors and employees against any claim that Publisher’s use of the Services or Ogury Technology in accordance with this Agreement infringes any United Kingdom or EU patent (effective as of the date which Publisher begins to use the Services), copyright, trade mark, database right or right of confidentiality, and shall indemnify Publisher for any amounts awarded against Publisher in judgment or settlement of such claims, provided that:

– 13.2.1. Ogury is given prompt notice of any such claim;

– 13.2.2. Publisher provides reasonable co-operation to Ogury in the defence and settlement of such claim, at Ogury’s expense; and

– 13.2.3. Ogury is given sole authority to defend or settle the claim.

13.3. In the defence or settlement of any claim, Ogury may procure the right for Publisher to continue using the Services or Ogury Technology, replace or modify the Services or Ogury Technology so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement immediately on notice to Publisher without any additional liability or obligation to pay liquidated damages or other additional costs to Publisher.

13.4. In no event shall Ogury, its employees, agents and sub-contractors be liable to Publisher to the extent that the alleged infringement is based on:

– 13.4.1. a modification of the Services or Ogury Technology by anyone other than Ogury; or

– 13.4.2. Publisher’s use of the Services or Ogury Technology in breach of the Agreement or a manner contrary to the instructions given to Publisher by Ogury; or

– 13.4.3. the contents of an advertisement served by Ogury as part of the Services;

– 13.4.4. Publisher’s use of the Services or Ogury Technology after notice of the alleged or actual infringement from Ogury or any appropriate authority.

13.5. The foregoing state Publisher’s sole and exclusive rights and remedies, and Ogury’s (including Ogury’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

14. Feedback and Marketing

14.1. Feedback. All comments, feedback or materials submitted by Publisher to Ogury about the Services or Ogury Technology, including feedback, testimonials, images, reviews, questions, comments, suggestions or ideas shall be the property of Ogury and be treated by Ogury on a non-confidential and unrestricted basis unless agreed in writing with Publisher.

14.2. Publicity and Marketing. Publisher grants Ogury a worldwide non-exclusive, non-transferable, royalty-free license to use Publisher Trade Marks for use by Ogury on Ogury’s website and other external communications channels, promotional materials,marketing collateral and co-marketing materials such as a branded case study and for press relations in conjunction with the Services unless agreed otherwise with Publisher in writing. This license is granted for the duration of this Agreement. Ogury shall make no other use of the Publisher Trade Marks.

15. Miscellaneous

15.1. Force Majeure. Ogury shall have no liability to Publisher under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Ogury or any other party), failure of a utility service or transport or telecommunications network, act of God, pandemic or epidemic, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that Publisher is notified of such an event and its expected duration.

15.2. Conflict. If there is an inconsistency between any of the provisions in the main body of this Agreement and any of the provisions in any Service Addendum and/or in the Data Annex, the provisions in the Data Annex shall prevail over the provisions in the Service Addendum, which shall prevail over the provisions in the main body of this Agreement, unless expressly stated otherwise.

15.3. Variation. Ogury reserves the right to amend any terms of this Agreement or its policies that apply to Publisher’s use of the Services or Ogury Technology at any time, in its sole discretion on giving notice to Publisher. Any amendments will be effective immediately upon posting on the www.ogury.com website or as otherwise notified to Publisher. Publisher’s continued use of the Services or Ogury Technology following the posting or notification of any amendments to this Agreement will constitute Publisher’s agreement to such amended Agreement.

15.4. Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

15.5. Rights and Remedies. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

15.6. Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deemed deleted under the foregoing, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

15.7. Entire Agreement. This Agreement and any applicable Service Addendum constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Neither party shall have a claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

15.8. Assignment. Publisher shall not, without the prior written consent of Ogury, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Ogury may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

15.9. No Partnership or Agency. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

15.10. Third Party Rights. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

15.11. Survival. Clauses 4, 8, 10, 11, 12, 13 and 15 shall survive termination of this Agreement.

15.12. Notices. Any notice required to be given under this Agreement shall be in writing and shall (i) be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address notified by that party for such purposes (in the case of Ogury to the address above), or (ii) in the case of notices sent by Ogury, sent by email to the email address provided by Publisher to Ogury. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

15.13. Governing Law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

15.14. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Ogury Monetization Service Addendum

1. The Monetization Service

1.1. This service addendum (“Addendum”) sets out the specific terms relating to the provision of the Ogury monetization service by which Ogury displays interest based and non-interest based advertisements to End-Users via the Ogury Technology on the Digital Properties on behalf of advertisers (“Monetization Service”).

1.2. Subject to the terms of the Agreement (including this Addendum) Ogury agrees to make available and allow Publisher access to its Monetization Service via the Ogury Technology, whether or not enabled through Header Bidding Technology or Mediation Platform.

2. Advertisers and Advertisement

2.1. To provide the Monetization Service, Publisher authorizes Ogury to provide advertisements to End-User devices through the Digital Properties.

2.2. Publisher grants Ogury sole authority and discretion to: (i) identify, select and manage relationships with advertisers; and (ii) negotiate and conclude agreements with advertisers and ad networks for the delivery of advertisements to End-User mobile devices via the Digital Properties in connection with the Monetization Service.

3. Restrictions

3.1. Publisher shall not use, and shall not permit the use of, any mechanical, technical, computerised, fraudulent, deceptive, or any other artificial means (including but not limited to the use of bots or automated tools) of increasing the number of Impressions or other forms of engagement with advertisements including but not limited to, by incentivising End-Users to view or engage with advertisements; displaying advertisements where there is no bona fide, human End-User that actually views the display on their device, displaying advertisements outside the Digital Properties or other means as determined by Ogury in its sole and absolute discretion.

3.2. Publisher shall ensure that the Digital Properties do not display, reference, link to, or endorse any content of the following nature, as reasonably determined by Ogury: offensive language, hatred, violent content, racial intolerance or advocacy against any individual, group or organisation; pornography, nudity, adult or mature content; hacking/cracking content; illicit drugs and drug paraphernalia; excessive profanity; facilitation or promotion of illegal file sharing, downloading and/or streaming; sales or promotion of weapons or ammunition (e.g. firearms, fighting knives, stun guns); sales or promotion of products that are replicas or imitations of designer goods; sales or distribution of term papers or student essays; cult or occult related content; drugs rating, adware/malware, illegal gambling content; or any other content that is illegal, promotes terrorism or acts of terror or any illegal activity, or which infringes on the legal rights of others (“Prohibited Content”) and/or illegal content. This list is not exhaustive and can be updated from time to time by Ogury.

4. Implementation and Support

4.1. Ogury shall provide commercially reasonable support to Publisher in connection with initial implementation of the Ogury Technology at no charge.

5. Data

5.1. Publisher grants Ogury the right to collect, access and use end user data via the Ogury Technology to improve its targeting capabilities and serve interest-based recommendations to End-Users. All End-User data collected by Ogury through the Ogury Technology shall remain the full property of Ogury during and after the termination of this Agreement.

6. Payments and Invoicing

6.1. Ogury shall pay Publisher for its use of the Monetization Service. The amount due to Publisher (“Publisher’s Net Earnings”) shall depend on the volume of Impressions displayed by Ogury on the Digital Properties or clicks or other interactions with such advertisements by End-Users (as determined by Ogury in its sole and absolute discretion) and the price per any thousand Impressions an ad unit receives (“CPM”).

– 6.1.1. In the event the Monetization Service is enabled through a standard ad unit, Ogury and Publisher may agree a CPM on the Site or otherwise in writing (“Expected CPM”), in which case Publisher understands that such Expected CPM is an estimate and subject to fluctuation due to the use of an Ogury algorithm to optimize campaign results.

– 6.1.2. In the event the Monetization Service is enabled through a Header Bidding ad unit, the CPM payable to the Publisher for an Impression will be equal to the bid price at which Ogury won the auction for the applicable inventory.

Publisher acknowledges that all payments hereunder shall be based on Ogury’s measurements which will be made available for each calendar month through the Site, in a draft invoice, following the end of such month. If Publisher disputes the amount of any draft or final invoice it must do so no later than one month after the date of the draft invoice being published.

6.2. In order to validate a draft invoice and/or request payment the total amount due to Publisher (under one or more draft invoices) must be USD 50 or more (or currency equivalent) and Publisher must have provided all the information required in the My Account and My Bank Info section of the Site. The date of invoice shall be the date Publisher validates the draft invoice using the Site. Ogury shall pay amounts due under any invoice within 30 days of the end of the month in which it is dated.

6.3. Publisher’s Net Earnings displayed on the Site are exclusive of any value added or sales taxes. Any applicable value added or sales taxes, calculated on the basis of the information provided by Publisher, will be added to the amount payable on any invoice and be considered as final. Ogury shall not be held liable for any additional amounts to be paid due to Publisher’s failure to provide the correct billing information on the Site.

6.4. If Ogury fails to pay any invoice that is due after receiving notice that payment is overdue from Publisher, interest of 2% above the annual base rate of the Bank of England shall be payable on any such overdue balance.

6.5. If Ogury, based on the billing information submitted by Publisher, is required to withhold any taxes on payments to Publisher under this Agreement Ogury shall withhold such amounts and pay the same to the relevant tax authorities as required. Ogury shall provide documentation regarding such withholding and payment on request by Publisher. Ogury shall not be liable for any additional withholding taxes to be paid due to Publisher’s failure to provide the correct billing information on the Site nor required to increase any payments to Publisher as a result of any such withholding and payment to tax authorities.

6.6. Publisher shall indemnify Ogury in respect of taxes imposed by any jurisdiction which are the responsibility of Publisher and any liability (including penalties, in addition to tax, interest and expenses) arising therefrom or with respect thereto, whether or not such taxes were correctly or legally imposed.

6.7. Bank Charges. Publisher shall be responsible for any charges payable as a result of receiving funds into the account or service it has nominated to receive payment. Publisher may select their preferred payment method via the Site. A payment processing fee will be applied depending on the payment method chosen. In the event of payment rejection due to incorrect information provided by Publisher, additional charges may apply to Publisher. More information on current payment methods and bank charges is available via the Site.

6.8. Currencies. All amounts payable to a Publisher in respect of its use of the Monetization Service are calculated in USD. Publisher may request an alternative currency for invoicing and payment via the Site. If Publisher selects EUR or GBP the base USD amount will be converted at the average exchange rate, elected by Ogury in its discretion, applicable to the relevant month. If Publisher chooses a currency other than USD, EUR or GBP, the invoice will be shown in the default currency USD, but the payment will be made in the selected currency at the then current exchange rate applied by our payment partner and may be subject to additional fees (including for currency conversion and payment processing) which will be deducted from the amount payable. Ogury shall use reasonable endeavours to make information regarding the applicable exchange rates and fees available via the Site but Publisher shall be responsible for any such additional fees and all the risks relating to any currency conversion requested by Publisher.

6.9. Publisher shall not be entitled to payment in respect of any Impressions (a) that are Invalid Impressions or otherwise result from a breach of the Agreement; (b) any Impressions via which Ogury serves a transparency and consent notice; or (c) for which Ogury has not been paid by an advertiser or media agency.

6.10. If Publisher is VAT-registered in the UK, it shall enter into a self-billing agreement on Ogury’s standard terms where requested by Ogury.

7. Suspension

Ogury may at any time, in its absolute discretion, with or without notice to Publisher, suspend Publisher’s use of the Monetization Service, as a whole or in relation to a specific Digital Property.

8. Disclaimer

Ogury assumes no responsibility or liability whatsoever for the content of the advertisements and Publisher understands that Ogury does not produce content but rather facilitates interactions between publishers and advertisers by providing advertisements on behalf of advertisers to the End-Users. In the event that Publisher objects to the content of any advertisement served via Ogury as part of the Monetization Service its sole remedy shall be to notify Ogury in writing following receipt of which Ogury shall use reasonable endeavours that such advertisement is not displayed via Digital Property again.

Ogury Choice Manager Addendum

1. The Ogury Choice Manager

1.1. This service addendum (“Addendum”) sets out the specific terms relating to the provision of Ogury’s transparency, consent and preference management tool that allows Publisher to collect and manage consent signals from users of the Digital Properties (“Choice Manager”).

1.2. Subject to the terms of the Agreement (including this Addendum) Ogury grants Publisher a non-exclusive, non-transferable right and license (without the right to sublicense) to access and to use Choice Manager via the Ogury Technology.

2. Warranties

2.1. Ogury warrants that the Choice Manager is compatible with version 2.0 of the IAB Europe Transparency and Consent Framework (the “Framework”). Publisher will be notified of support for future versions of the Framework by Ogury.

2.2. For the avoidance of doubt Ogury gives no warranty that the Choice Manager will ensure that Publisher and its vendors comply with the requirements of the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) or any other applicable privacy legislation with regard to the processing of personal data (or equivalent terms under other applicable law).

3. Service Changes

3.1. Ogury may change at any time (a) the content, format, features available or nature of Choice Manager; and (b) the means of access to Choice Manager.

4. Publisher Obligations

4.1. Publisher shall (a) follow all reasonable instructions from Ogury, however communicated, regarding the use of Choice Manager; (b) promptly update Choice Manager after Updates and upgrades are made available by Ogury; (c) will not interfere or attempt to interfere with the operational features of Choice Manager or override any default settings of Choice Manager; and (d) not amend or restrict the legal bases, purposes or features (including special features) that Ogury relies on to process Personal Data.

5. Term and termination

5.1. If Publisher also uses the Monetization Service, this Addendum shall commence on the day the Choice Manager is first used and continue until such time as Publisher’s use of the Monetization Service terminates.

5.2. If Publisher is not also a user of the Monetization Service, this Addendum shall, commence on the date Publisher signed up for Choice Manager and shall continue on a rolling basis until terminated by Publisher on 7 days’ notice or by Ogury on giving 60 days’ notice.

5.3. Without prejudice to any other right or remedy available to it, either party may terminate this Addendum with immediate effect by giving written notice to the other party if the other party commits a material breach of this Addendum which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 15 days after being notified in writing to do so.

6. Payment

6.1. Ogury shall not charge for use of the Choice Manager but may elect to do so on giving 60 days’ notice to Publisher after which point Publisher will either agree to pay the fees at the notified rate in accordance with the remainder of this clause or this Addendum shall automatically terminate. For the avoidance of doubt Ogury may make various Choice Manager products available with different levels of functionality and different levels of price.

6.2. If Publisher is not a user of the Monetization Service, with the Ogury Technology installed and live in its Digital Properties, Ogury will invoice Publisher a monthly fee, notified to Publisher in accordance with clause 5.1 above.

6.3. Invoices will be sent to the email address provided by Publisher during the sign-up process for the Choice Manager. Publisher will make payment 30 days from the date of any invoice.

6.4. All fees payable are exclusive of VAT, or other applicable sales tax, and shall be paid in the currency notified to the Publisher.

6.5. Without prejudice to any other remedy Ogury may suspend Publisher’s use of the Choice Manager, immediately without notice, in the event any invoice is not paid in accordance with the terms of this clause. Such suspension shall come to an end only on receipt of payment by Ogury of all outstanding payments then due.

Data Processing Annex

In connection with the Services, unless otherwise agreed in writing, Publisher shall transfer (or permit Ogury to collect using the Ogury Technology) certain Personal Data (as further described in the Schedule to this Annex) from End-Users (the “Service Data“) for Ogury to use as a Controller in providing the Services under this Agreement (the “Permitted Purpose“).

1. Each party shall comply with the obligations that apply to it under Applicable Data Protection Law in respect of its Processing of Service Data. In particular (and without limitation):

1.1. Publisher shall maintain a publicly accessible privacy notice on each Digital Property from which Service Data is collected which provides clear and comprehensive information to Data Subjects about Publisher and Ogury’s collection and Processing of Service Data for the Permitted Purpose.

1.2. Each party shall implement appropriate technical and organizational measures to protect against the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, the Service Data.

1.3. Where Service Data is transferred from the European Economic Area (“EEA“), Switzerland or the UK, Ogury shall not Process such Service Data (nor permit such Service Data to Processed) outside of the EEA, Switzerland or the UK (as applicable) unless it has taken such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. Such measures may include (without limitation) transferring the Service Data to a recipient in a country that provides adequate protection for Personal Data in accordance with EEA, Swiss or UK data protection law (as applicable), to a recipient that has achieved binding corporate rules authorization in accordance with Applicable Data Protection Law, or to a recipient that has executed standard contractual clauses adopted or approved by the European Commission, Swiss Federal Data Protection Commissioner or UK Information Commissioner’s Office (as applicable).

1.4. Any transfer of Service Data from Publisher in the EEA to Ogury shall be made under the European Commission’s adequacy decision, pursuant to the GDPR, regarding the data protection regime in the UK of 28 June 2021.

1.5. In the event that either party receives any correspondence, enquiry or complaint from a Data Subject, regulator or other third party (“Correspondence“) related to (a) the disclosure of (or permitted access to) Service Data by Publisher to Ogury for the Permitted Purpose; or (b) Processing of Service Data by the other party pursuant to this Agreement, it shall promptly inform the other party giving full details of the same, and the parties shall cooperate reasonably and in good faith in order to respond to the Correspondence in accordance with any requirements under Applicable Data Protection Law.

1.6. If, subject to Ogury’s written approval, Publisher uses the Monetization Service but does not use Choice Manager the following terms shall apply:

– 1.6.1. Publisher shall implement a CPMP on Digital Properties that incorporate the Ogury Technology which meets the necessary transparency and lawfulness requirements and collects the requisite consents required by Applicable Data Protection Law to enable Ogury to lawfully collect and use the Service Data for the Permitted Purpose;

– 1.6.2. In particular (and without limitation) Publisher CPMP referred to in 1.6.1 shall:

— 1.6.2.1. provide End-Users the ability to consent to the collection of Service Data by Ogury in accordance with Applicable Laws;

— 1.6.2.2. include a clear reference to Ogury’s Privacy Policy here https://ogury.com/privacy-policy/;

— 1.6.2.3. provide End-Users with an easy to exercise means by which End-Users can opt out of or object to the collection or Processing of Service Data by Ogury;

– 1.6.3. Ogury shall have the right to audit Publisher’s compliance with this clause 1.6 at any time and for the avoidance of doubt, may immediately terminate its provision of the Services if, in its reasonable opinion, Publisher has failed to comply with such obligations.

2. California Consumer Privacy Act Service Provider Terms

2.1. Service provider appointment: Publisher appoints Ogury as its service provider to process the personal information collected in the course of displaying contextual advertising (and associated measurement) to End-Users, including IP address, user agent, device and OS information, SDK type and version, Context information (Device Internet connection type, User agent, language and country codes, local time, time-zone), Errors related information (Exception type, error message and stack trace) and advertising identifier (the “Personal Information“) for the Business Purpose.

2.2. Business purpose: Ogury shall process the Personal Information as a service provider strictly for the business purpose(s) of the delivery of contextual advertising and associated measurement and reporting for Ogury’s own purposes and also for those of advertisers (the “Business Purpose“). Ogury is prohibited from retaining, using or disclosing the Personal Information for any purpose other than for the Business Purpose, or as otherwise permitted by the CCPA, including retaining, using or disclosing the Personal Information for a commercial purpose other than providing the services specified in the Agreement.

2.3. Service provider certification: Ogury shall not: (a) sell the Personal Information; (b) retain, use, or disclose the Personal Information for any purpose other than for the Business Purpose, including to retain, use, or disclose the personal information for a commercial purpose other than performing its services under the Agreement; (c) retain, use, or disclose the Personal Information outside of the direct business relationship between the Ogury and Publisher. Ogury certifies that it understands the restrictions set out in this clause 2.3 and will comply with them.

2.4. Scope of Service Provider Appointment: For the avoidance of doubt Ogury’s appointment as a service provider shall apply only (i) to the extent that the relevant End-User is a consumer for the purposes of the CCPA; and (ii) the consumer has not directed that their personal information be shared with Ogury.

3. COPPA

3.1. Publisher warrants that the Digital Properties are not directed to children, as defined under the Children’s Online Privacy Protection Act (“COPPA”); and (ii) it shall not transmit any “Personal Information” (as defined under COPPA) about or relating to an individual under the age of 13 to Ogury.

4. Definitions

Within this Annex defined terms shall have the following meaning:

“Applicable Data Protection Laws” means all worldwide data protection and privacy laws and regulations applicable to the personal data in question, including but not limited to, EU Data Protection Law;

“Business Purpose” has the meaning given in clause 2.2;

“California Consumer Privacy Act” or “CCPA” means Title 1.81.5 California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100-1798.199), as amended or superseded from time to time. “business”, “collects” (and “collected” and “collection”), “consumer”, “business purpose”, “personal information”, “sell” (and “selling”, “sale”, and “sold”) and “service provider” shall have the meanings given to them in §1798.140 of the CCPA;

“Controller” has the meaning given in EU Data Protection Law;

“CPMP” means a transparency, consent and preference management tool or platform which enables app and website publishers to provide transparency for, and collect and manage consent signals from, end-users of apps or websites, in relation to the collection and use of end-user information for certain purposes, including behavioural advertising purposes;

“Data Subject” has the meaning given to it in EU Data Protection Law;

“EU Data Protection Law” means (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (the GDPR); (ii) the EU e-Privacy Directive (Directive 2002/58/EC); and (iii) any and all applicable national data protection laws made under or pursuant to (i) or (ii); in each case as may be amended or superseded from time to time;

“Personal Data” has the meaning given to it in EU Data Protection Law;

“Personal Information” has the meaning given in clause 2.1; and

“Process” and “Processing” has the meaning given to it in EU Data Protection Law.

Schedule
Data Collected by Ogury

Technical Information

• Device and OS related information (Device model and manufacturer, screen’s dimensions, OS version, Virtual Machine name and version, android standby bucket)
• Details of the Property and web browser in which the Ogury technologies are incorporated (asset key, App name and version or mobile web address and ad unit)
• Context information (Device Internet connection type, User agent, language and country codes, local time, time-zone)
• The version number of the Ogury technologies used by the Digital Property.

Identifiers

• A Device’s unique Advertising ID, such as Google AAID or Apple IDFA.
• Cookie IDs
• Device IP Address.

Ad Engagement Information

• What each Ogury ad is about.
• The format of each Ogury ad (e.g., text, image, or video).
• Where the Ogury advertisement is displayed within a Digital Property or elsewhere.
• End-User interaction with the advertisement (for example, clicks and how long it was displayed for).
• End-User interaction with websites after clicking on an Ogury advertisement.

Other

• Crash information
• Data submitted to Ogury directly by End-Users, for example, via surveys.