2. Use of the Platform and Services.

2.1. Publisher is the owner of and/or is duly licensed to publish the Publisher’s App, and wishes that Marzipan provide it with the Services made available by the Marzipan Platform for the Publisher App, all subject to and in accordance with the terms and conditions set forth in this Agreement.

2.2 As part of the Services, Publisher will be assigned a username and password with which Publisher shall be able to access the Publisher Account. Publisher’s account is for personal (i.e., individual or entity) use only. Publisher agrees: (a) to keep its password secure and confidential; (b) not to permit others to use the Publisher Account; (c) not to share, transfer or assign the Publisher Account’s password to any third party; (d) to create only one unique and bona fide profile as a Publisher and (e) that all information it provides to Marzipan is true, accurate, complete, up-to-date, and solely the Publisher’s. Publisher is solely responsible for actions taken in Publisher’s Account, whether or not authorized by the Publisher. Marzipan shall not be liable for any loss or damage, whether to you or any third party, arising from any unauthorized use of the Publisher Account or any other breach of security pertaining to the Publisher Account, including with respect to any Publisher details update made through the Publisher Account. Publisher agrees to use industry-standard security practices to protect its Publisher Account credentials and notify Marzipan immediately of any unauthorized use of the Publisher Account or any other breach of security.

2.3 Marzipan may, at its sole discretion, at any time and without notice: (a) determine the scope of the Service, including, the Advertisements that are available to the Publisher; and (b) modify, replace or make any other changes to, or discontinue or suspend, the Service (or any part thereof) or the Publisher Account. As between the parties, Marzipan does not have any obligation to monitor any materials or content which are available as part of the Services. Marzipan may make changes to these Terms of Service for Publishers, including without limitation the Data Protection Addendum for Publishers, Privacy Policy, the Madex SDK License Agreement or  Policies for Publishers, on an on- going basis at any time at Marzipan’s sole discretion.

2.4 Publisher shall display the Advertisements on Publisher’s App according to the terms of this Agreement, including any placement requirements and technical specifications provided by Marzipan, to enable proper display of such Advertisements. Publisher shall not add, modify, alter, delete content, text or appearance of the Advertisement without the prior written approval of Marzipan.

2.5 As part of the Services, Marzipan may offer a programmatic exchange and certain auction based monetization management features, as well as programmatic support for its advertisers, in order to provide optimization across Third Party Ad Suppliers and programmatic buyers (the “Programmatic Platform”). Publisher acknowledges that Marzipan reserves the right to determine the mechanics of the auction and Programmatic Platform and provides no warranties with respect to the availability or operations of such platform.

3. License; Proprietary Rights.

3.1 As between the Parties: (i) Marzipan and its licensors (if any) retain all rights, title and interest, including Intellectual Property rights, in and to, any and all components of the Service, including without limitations its platforms, SDK(s) (if integrated) and Marzipan’s Confidential Information, the Advertisement (including any content placed in the Advertisement), and all modifications, enhancements, improvements, and/or derivatives to any of the foregoing. All rights in and to the foregoing not expressly granted hereunder are reserved to Marzipan and its licensors (if any). Publisher will not obscure, remove or alter Marzipan’s copyright notice or other proprietary rights notices attached to or contained within any and all components of the Service, including without limitations its platforms, SDK(s) (if integrated) and Marzipan’s Intellectual Property; and (ii) Publisher and its licensors (if any) retain all rights, title, and interest, including Intellectual Property rights in and to, any and all components of Publisher’s App and Publisher’s Confidential Information, and all modifications, enhancements, improvements, and/or derivatives to any of the foregoing. All rights not expressly granted hereunder are hereby reserved. Publisher hereby grants Marzipan a non-exclusive perpetual license and all required permissions to the data and information with respect to Publisher’s App and End Users’ use of the Publisher’s App, for the Services. Publisher acknowledges that Marzipan may use anonymized and aggregated data derived from the Applications to provide the Services and other services provided by Marzipan or any of its Affiliates. Marzipan hereby provides Publisher with a limited, non-exclusive, non-sub licensable, non-transferable, royalty free worldwide right, under its Intellectual Property and the licenses provided to it by third parties, only during the Term of this Agreement, to display the Advertisement on Publisher’s App and use the Marzipan Platform, solely according to the terms of this Agreement. Each Party acknowledges and agrees that any and all goodwill and other proprietary rights that are created by or that result from a Party’s use of the other Party’s Marks as permitted hereunder will inure solely to the benefit of the other Party.

3.2 The Publisher (or any person acting on its behalf) may not: (a) copy, modify, execute or perform publicly, make available to the public, reduce to human readable form, emulate, sell, resell, lease, rent, lend, sublicense, make any commercial use, process, adapt, translate, modify, reverse engineer, combine with any software or application (other than as expressly permitted under this Agreement), decompile, disassemble or create derivative works of any material that is Marzipan’s Intellectual Property, other than as expressly permitted under this Agreement; (b) make any use of the Service, or any part thereof other than as expressly permitted hereunder; (c)suspend the operation of the SDK at any time during the Term; or(d) interfere with or disrupt the operation of the Services, the servers or networks that host and/or connect with the Service and/or make them available, or violate any requirements, procedures, policies, or regulations of such servers or networks.

3.3 We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Services (“Feedback“). You may submit Feedback through the Contact Us page on our website. You acknowledge and agree that all Feedback will be solely and exclusively our property and you hereby irrevocably assign to us all right, title, and interest that you may have in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or Intellectual Property rights therein.

3.4 Publisher agrees that Marzipan may: (a) feature the Publisher’s App and Marks in different marketing materials and as part of promotional campaigns, including newsletters, case studies and press releases and Publisher shall reasonably cooperate and assist Marzipan with such marketing efforts; and (b) identify Publisher as a user of the Service.

3.5 COPYRIGHT POLICY. Marzipan respects the Intellectual Property rights of others and expects Publisher to do the same. Marzipan may terminate Publisher Account and access rights of any copyright infringer. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us.

3.6 You must comply with the  Policies for Publishers (the “Publisher Policies”) and shall not contribute, submit, or make available through the Services, or use the Services in connection with, any Property or content that violates the Publisher Policies.

3.7 Software End User License (“SDK”)

3.7.1 In order for Marzipan to provide you the Marzipan Services, you are required to download the Madex SDK, which are subject to the Agreement contained therein. The SDK end user license Agreement are incorporated by reference into this Agreement of Service and can be found here.

3.7.2 Your use of any third-party SDKs in connection with the Marzipan Services is governed by the Agreement of any Agreement applicable to that integration.  Marzipan is not responsible for any aspect of your third-party SDK integrations, including any data processing that may occur through the integration.  You and the third-party SDK provider must ensure compliance with all applicable laws and regulations, including those concerning privacy and data protection.

3.8 You must configure and properly integrate the SDK into Ad Inventory for proper advertising, and comply with any other requirements of App Store, Google Play, App Gallery, Samsung Galaxy store Platform developers that are prerequiplatforms for enabling advertising in Ad Inventory.

3.9 You must have an active application that is currently published in the App Store, Google Play or App Gallery, Samsung Galaxy store. If at any point the application is removed from those Platforms, but impressions generating from Marzipan ads continue, You acknowledge, understand and agree that You may not receive earnings derived from such impressions.

4. Publisher Obligations and Requirements.

4.1 Publisher will use the Services only in a manner consistent with this Agreement and the Services Documentation, and will comply with all Applicable Rules, including data protection and privacy laws and rules applicable to any data of the End Users that is being accessed, collected, used and/or shared by Publisher. Publisher shall post in the Publisher’s App a privacy policy that abides by all applicable rules, laws, acts and regulations and that provides legally adequate disclosure to its End Users about: (i) any information relating to End Users that will be provided or is otherwise accessible to Marzipan in connection with the Services, as set forth in the  Marzipan Privacy Policy as available on Marzipan’s website and (ii) to the extent applicable, in a conspicuous manner, a mechanism for which an End User may opt-out of receiving targeted ads based on the End User’s behavior and interests. Publisher hereby confirms that it has read and understood the  Marzipan Privacy Policy, and that nothing therein is contrary to Publisher’s privacy policy.

4.2 Publisher must indicate and flag, in accordance with the instructions set forth in the Service Documentation, through its Publisher Account, any Application(s) directed to children, as defined under Applicable Laws including the U.S. Children’s Online Privacy Protection Act and its implementing regulations (collectively, “COPPA”) and any other Application(s) that the Publisher believes to be subject to COPPA or to other child protection privacy laws, including the CCPA and the GDPR, in accordance with the age specifications set forth in such legislation applicable to the End User (collectively, “Child Protection Laws”). Additionally, for any Application(s) that are not indicated as directed to children through the Publisher Account, including Application(s) that are directed to a general audience, the Publisher must indicate and flag, through the applicable API parameter or account set-up, any specific End Users that are subject to Child Protection Laws. Publisher must notify Marzipan if the Children’s Advertising Review Unit (“CARU“) determines an application is directed at children and if an application has been included in a National Advertising Division (“NAD”) or CARU report. The Publisher represents and warrants, and shall be exclusively responsible for ensuring, that Marzipan will not receive, and it and any third party on its behalf will not make available to Marzipan any data that may be regarded as “special categories of personal data” under the GDPR, including to the extent that the use by an End-User of the Publisher’s Application may provide an indication about such End-User that can be considered a “special category of personal data” under the GDPR.

4.3 Publisher has not and will not provide inaccurate, misleading or false information to Marzipan. If information provided to Marzipan subsequently becomes inaccurate, misleading or false, Publisher will promptly notify Marzipan of such change.

4.4 Notwithstanding anything to the contrary in this Agreement, Publisher acknowledges and agrees that each instance of Forbidden Activity or a violation of Publisher‘s obligations under this Agreement, may cause Marzipan irreparable harm and therefore and without derogating from any other remedy available to Marzipan in equity or Applicable Rules, will entitle Marzipan to withhold and offset any Consideration (as defined below) due to Publisher. Marzipan shall determine if Forbidden Activity has occurred at Marzipan’s sole discretion and in case it has been established that Forbidden Activity has occurred, Marzipan will be entitled to withhold and offset any Consideration due to Publisher.
4.5 You hereby acknowledge and agree to the terms of the Data Processing Addendum for Publisher attached here to.

5. Fees and Payment.

5.1 Subject to your full compliance with these Agreement, Marzipan will pay you compensation for Advertisements displayed on Ad Inventory via the Marzipan Services, as determined by Marzipan from time to time in its sole discretion (the “Consideration”). The Consideration will be calculated solely based on records maintained by Marzipan, and no other measurements or statistics of any kind will be accepted or have any effect. Payments to you may be withheld to reflect or adjusted to exclude any amounts refunded or credited to advertisers and any amounts arising from invalid activity, as determined by Marzipan in its sole discretion. Invalid activity is determined by Marzipan in all cases and includes, but is not limited to, (i) spam, invalid impressions or invalid clicks on ads generated by any person, bot, automated program or similar device, including through any clicks or impressions originating from your IP addresses or computers under your control or initiated by an End User or any third party; (ii) clicks solicited or impressions generated by payment of money and false representation; (iii) clicks or impressions co-mingled with a significant amount of the activity described in (i) and (ii) above, or (iv) any breach of these Agreement by you.

5.2 Payment of the Consideration shall be made within forty five (45) days after the end of each calendar month, in U.S. Dollars by electronic funds transfer. You agrees that Marzipan shall not be required to pay You until such time that the amount owed to You equals or exceeds Two Hundred and Fifty U.S. Dollars (US$250), and such amount shall accumulate until such time as the payment due to You exceeds Two Hundred and Fifty U.S. Dollars (US$250). To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information associated with your Account. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your use of the Marzipan Services.

5.3 The Publisher Account includes a dashboard where Publisher will be able to view reports regarding the number of impressions, clicks, eCPM rates, estimated revenue and more, subject to Marzipan’s sole discretion (the “Dashboard”). Publisher acknowledges and agrees that the Dashboard is provided to Publisher for convenience purposes only and Marzipan is not liable for any unavailability or inaccuracy, temporary or otherwise, of the Dashboard, including without limitation and specifically with respect to Third Party Ad Suppliers. Publisher acknowledges and agrees that the manner in which the Dashboard reports are generated (the “Reports”), including without limitation, the manner in which the Consideration is calculated and presented therein may be modified and/or altered by Marzipan at any time without prior notice to Publisher.

5.4 Publisher acknowledges and agrees that it will pay all applicable taxes, including without limitation, value-added, customs fees, import duties or other taxes and duties imposed by any governmental authority on Publisher with respect to the Consideration. Furthermore, Publisher agrees to refund Marzipan for any Consideration that was paid to Publisher and is subject to chargeback or other fees Marzipan may have paid following payment to Publisher.

5.5 Marzipan shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable or issuable to Publisher, such taxes as required to be deducted and withheld with respect to the making of any such payment under any Applicable Rule. To the extent that amounts are withheld or deducted and remitted to the applicable Tax authority, pursuant hereto, such withheld and deducted amounts shall be treated for all purposes of this Agreement as having been paid to Publisher, in respect of which such deduction and withholding was made. Marzipan shall provide to Publisher the relevant payment recipient evidence regarding any such withholding, following its request. Marzipan makes reasonable efforts to decrease the withholding tax due, e.g., by applying the tax treaty benefits. For purposes of making determinations hereunder, Marzipan may request and be provided with any necessary and validly executed tax forms, including tax residency certificate of the payment recipient.

6. Confidentiality.

6.1 Each Party (the “Receiving Party”) may use the Confidential Information disclosed to it by the other party (the “Disclosing Party”) only as necessary to exercise rights and perform obligations under the Agreement. Receiving Party shall not disclose the Confidential Information of the Disclosing Party to any third party without its prior written consent. Receiving Party will protect Disclosing Party’s Confidential Information from disclosure or misuse by utilizing at least the same degree of care as it does for Receiving Party’s own Confidential Information of like importance, but will at least use reasonable care. Each Party agrees to restrict access to the Confidential Information to those of its officers, directors and employees (including of its affiliates), independent contractors or service providers it retains (collectively “Employees”), who have a “need to know” of such Confidential Information, have been instructed as to the confidential nature of such information and are bound by written confidentiality obligations at least as restrictive as the obligations imposed on the parties hereto by this Agreement. Each Party hereto shall be liable to the other in the event that any of its Employees breach these obligations. Nothing in this Agreement shall prevent the Receiving Party from disclosing the Confidential Information of the Disclosing Party pursuant to a valid order of a court or government agency, or pursuant to applicable law or regulation, provided that the Receiving Party provides prompt prior written notice to the Disclosing Party of such obligation and the opportunity to oppose such disclosure. Upon such disclosure, the Receiving Party shall disclose only such portion of the Confidential Information that is required in order to comply with the specifications of such court or governmental order. Upon termination of the Agreement for any reason or other written demand of the Disclosing Party, the Receiving Party shall automatically and without the need for any further action to be taken by Disclosing Party, cease using the Confidential Information provided by the Disclosing Party and return the Confidential Information and all copies, notes or extracts thereof to the Disclosing Party within seven (7) days of receipt of notice.

7. Representations and Warranties.

7.1 Each Party hereby represents, warrants and undertakes to the other Party, that: (a) the Agreement constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms; (b) it has all requisite corporate power and authority to execute, deliver, and perform its obligations under the Agreement; and (c) it shall not bind the other Party to any agreement or obligation or give any representation, warranty or guarantee in respect of the other Party, except for those that are specifically authorized by the other Party hereunder and/or in advance and in writing.

7.2 Marzipan hereby represents, warrants and undertakes that during the Term hereof, it will use commercially reasonable efforts to provide the Services and perform its obligations hereunder. Marzipan shall make reasonable commercial efforts, that the Advertisements provided to Publisher shall not include pornography, child abuse, and/or any extremely graphic violent or hate-oriented content.

7.3 Publisher hereby represents, warrants and undertakes that: (i) it is solely responsible for the Publisher’s App; (ii) the execution of the Agreement and the performance by Publisher of its obligations under the Agreement do not and will not violate any other obligation or agreement, by which it is bound or to which it is subject; (iii) it and the Publisher’s App shall comply with this Agreement and all Applicable Rules; (iv) it is compliant with the Digital Advertising Alliance’s (DAA) Self-Regulatory Principles for Online Behavioral Advertising (for US ad inventory), the IAB Europe EU Framework for Online Behavioral Advertising (for EU ad inventory) to the extent applicable; (v) it will not act in any manner that may have any adverse impact on the goodwill and/or reputation of Marzipan; (vi) it will only use the Services for the purposes and in the manner expressly permitted under the Agreement; (vii) neither it nor any other third party on its behalf, will engage in a Forbidden Activity; and (viii) the information provided by Publisher to Marzipan before or after the Effective Date shall be correct and accurate.

8. Disclaimer of Warranties.

8.1 THE SERVICE IS PROVIDED ON AN “AS-IS” BASIS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE FULLEST EXTENT ALLOWABLE BY APPLICABLE RULES, MARZIPAN MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR THOSE ARISING IN THE COURSE OF OR CONNECTED TO THE PERFORMANCE HEREUNDER, AND DISCLAIM ANY SUCH WARRANTIES. IN ADDITION, MARZIPAN DOES NOT REPRESENT OR WARRANT THAT: (I) THE SERVICES OR ANY PART THEREIN WILL BE UNINTERRUPTED, ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; OR (II) FREE OF VIRUSES, WORMS, OR ANY OTHER HARMFUL COMPONENTS OR PROGRAM LIMITATIONS OR NON-INFRINGEMENT (III) PUBLISHER WILL PROFIT OR DERIVE ANY ECONOMIC BENEFIT FROM PUBLISHER’S USE OF THE SERVICES. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THEREFORE, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY.

8.2 The provisions of this Disclaimer of Warranty section shall apply to any new “beta” features or tools Marzipan may offer from time to time with which its Publishers may experiment on the Services. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Marzipan’s sole discretion.

9. Limitation of Liability.

9.1 IN NO EVENT WILL MARZIPAN BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE PLATFORM OR THE MARZIPAN SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OR CORRUPTION OF DATA OR PROGRAMS, SERVICE INTERRUPTIONS AND PROCUREMENT OF SUBSTITUTE MARZIPAN SERVICES, EVEN IF MARZIPAN KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL MARZIPAN’S AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THESE AGREEMENT OR THE USE OF THE MARZIPAN SERVICES OR THE PLATFORM, EXCEED THE NET AMOUNT PAID BY MARZIPAN TO YOU DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE RELEVANT CLAIM, OR, IF NO AMOUNT HAS BEEN PAID, THE AMOUNT OF $5.00.

9.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MARZIPAN BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE PLATFORM OR THE MARZIPAN SERVICES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS WITH OTHER REGISTERED USERS OF THE MARZIPAN SERVICES. THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO HAVE REGISTERED UNDER FALSE PRETENSES OR WHO ATTEMPT TO DEFRAUD OR HARM YOU.

9.3 You agree to indemnify, defend and hold harmless Marzipan, its officers, members, managers, directors and employees, for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of or from (a) Your use of or inability to use the Platform or Marzipan Services (b) your violation of any Agreement of these Agreement or your violation of any rights of a third party, (c) Your indemnification obligations under this Agreement; or (d) Your violation of any applicable laws, rules or regulations including without limitation applicable data privacy laws and regulations. Marzipan reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Marzipan in asserting any available defenses

10. Term and Termination.

10.1 This Agreement will commence on the Effective Date and will continue in perpetuity unless it is terminated as set forth herein (the “Term”).

10.2 This Agreement may be terminated in accordance with any of the following provisions:

10.3 Either Party may terminate this Agreement, or any Services related thereto, upon five (5) days’ prior written notice, for any reason and without liability.

10.4 Each Party may terminate this Agreement immediately, if the other Party: (i) breaches any of its obligations, representations and/or warranties herein contained and does not cure such breach within ten (10) days of receiving written notice thereof, or (ii) becomes insolvent or makes any assignment (whether voluntary or involuntary) for the benefit of creditors or, or has any petition under bankruptcy, insolvency or administration law filed against it, which petition is not dismissed within thirty (30) days of such filing, or has a trustee, administrator or receiver appointed for a material portion of its business or assets. If a Party becomes subject to any of the foregoing events it will immediately provide the other Party with written notification thereof.

10.5 Marzipan may immediately, block Publisher’s access to the Publisher Account, temporarily or permanently, suspend the Publisher Account or terminate this Agreement, withhold any payment due hereunder to the extent determined by Marzipan in addition to any other remedies that may be available to Marzipan under this Agreement and/or any Applicable Rules, if Publisher engages in any acts prohibited by this Agreement.

10.6 Upon the termination of this Agreement, for any reason: (i) all rights and licenses granted herein shall terminate immediately and without the need for any further action to be taken by either Party; (ii) Publisher’s right to use the Service and/or any part thereof, will terminate and, if integrated with Publisher’s App, the Publisher must promptly remove and delete the SDK from the Publisher App and systems and destroy all copies of the SDK; (iii) the Publisher’s access to the Publisher Account will be blocked; (iv) Publisher shall promptly return to the Marzipan, or destroy and certify the destruction of, all of the other Publisher’s Confidential Information.

10.7 Marzipan will not be liable to Publisher or any person for the termination of this Agreement or termination of Publisher’s access to the Publisher Account. Furthermore, Marzipan will have no obligation to maintain any information stored in its data centers related to the Publisher Account or to forward any information to Publisher or any person following the termination of this Agreement. Following the termination of this Agreement or suspension of the Publisher Account, any information which is related to the Publisher Account may no longer be accessed by Publisher.

10.8 The following sections will survive the termination of this Agreement: Sections 1, 5, 6, 8-10, this Section 10.6, and Section 11.

11. General.

11.1 The parties hereto are and shall remain independent contractors, and nothing contained herein shall be deemed to create any agency, Publishership or joint-venture relationship between the parties. Neither Party shall be deemed to be an employee or legal representative of the other, nor shall either Party have any right or authority to create any obligation on behalf of the other Party.

11.2 These Agreement, the Privacy Policy, the Madex SDK License Agreement, Policies for Publishers and Data Processing Agreement for Publisher comprise the entire Agreement between you and Marzipan regarding the use of these Marzipan Services, superseding any prior Agreements between you and Marzipan related to your use of this Platform or the Marzipan Services. Unless otherwise explicitly stated, the Agreement will survive termination of your registration to the Marzipan Services. No provision of any purchase order or other business form employed by you will supersede or supplement the Agreement of this Agreement, and any such document will be for administrative purposes only and will have no legal effect.

11.3 This Agreement constitutes the entire understanding between the parties with respect to the matters referred to herein and supersedes and cancels all prior agreements to the subject hereof, if any, between the parties. The headings of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.

11.4 If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances.

11.5 Failure to enforce any rights or to take any action against either Party in the event of any breach hereunder shall not be deemed as a waiver of such rights or of subsequent actions in the event of future breaches.

11.6 Neither Party shall be entitled to assign or transfer this Agreement or any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Marzipan may assign or delegate any of its rights and/or obligations arising in this Agreement without restriction.

11.7 This Agreement shall be binding on and inure to the benefit of each of the parties and their respective successors and assignees. This Agreement is not made for the benefit of any third Party who is not a Party hereto, and only the parties hereto or their respective successors and permitted assigns will acquire or have any benefit, right, remedy or claim under or by reason of this Agreement.

11.8 You agree that the law of the Republic of Cyprus (without giving effect to its conflicts of law principles) will govern these Agreement, the Platform and the Marzipan Services and that any dispute arising out of, from, or relating to these Agreement, the Platform or the Marzipan Services will be subject to the exclusive jurisdiction and venue of the federal courts located in the City of Limassol of the Republic of Cyprus. You acknowledge and agree that any violation of these Agreement may cause Marzipan irreparable harm, and therefore agree that Marzipan will be entitled to seek extraordinary relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security, in addition to and without prejudice to any other rights or remedies that Marzipan may have for a breach of these Agreement.

11.9 Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, internet outages, acts of God, war, governmental action, or any other cause that is beyond the reasonable control of such Party.

11.10 Copyright Infringement Claims – Digital Millennium Copyright Act Notice. If you believe that any material or content distributed by Marzipan constitutes copyright infringement, please provide us with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) identification of the copyrighted work that you claim has been infringed; (c) identification of where, within the Application, the offending material is located; (d) your address, telephone number and email address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. The above information should be submitted to Marzipan at: support@madex.world.

11.11 All notices required or permitted under this Agreement shall be in English and in writing. Notices shall be delivered as follows: (a) to Marzipan – by e-mail, registered or certified mail (postage prepaid) or by overnight courier service, at the address set forth in the Insertion Order or the Publisher Account, and (b) to Publisher by email to the address associated with the Publisher Account or through a notification in the Publisher Account of the Dashboard. A notice shall be deemed given (i) upon receipt when delivered personally, (ii) upon verification of receipt via email or a notification in the Publisher Account, (iii) within one (1) Business Day of being sent by overnight courier, or (iv) within three (3) Business Days of being sent by registered or certified mail. For purposes of the foregoing, Publisher agrees that Marzipan may rely upon the email address Publisher provided as part of the Publisher Account and that Marzipan will not be responsible for delays in the delivery of emails which delays are not associated with Publisher’s mail server.

11.12 We reserve the right to modify, discontinue or terminate the Marzipan Platform or any part thereof, or to modify this Agreement at any time, and without prior notice to you. If we modify this Agreement, we will update this Agreement on the Marzipan website at: http://madex.world/terms-of-service/, and in addition, should the update be material, provide you with notice pertaining to such update which may be provided through the Publisher Account. Please note that it is your responsibility to review the Agreement from time-to-time and check for updates. When the Agreement is updated, we will also update the date at the top of this Agreement accordingly. By continuing to access or use the Marzipan Platform following any update, you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Marzipan Platform. Disputes arising under or relating to these Terms of Service for Publishers will be resolved in accordance with the version of these Terms of Service for Publishers that was in effect at the time the dispute arose.

Publisher Data Protection Addendum for Publishers available here to.

This Data Protection Addendum for Publishers (“DPA”) is incorporated into and is subject to the Marzipan Terms of Service for Publishers available at https://madex.world/terms-of-service/ or other applicable offline agreement (the “Agreement”) between SUR IT MARZIPAN UNLOOSEN CUTS LTD (even if the Principal Agreement is with a different Marzipan Affiliate) (“Marzipan”) and Publisher (“User”). To the extent you are using the Services, you shall be deemed to have accepted this DPA upon acceptance or execution of the applicable Agreement.

1. SCOPE

1. The Parties agree to enter into this DPA for the purposes of ensuring compliance with applicable Data Protection Laws. User enters into this DPA on behalf of itself and on behalf of its authorized Affiliates. Marzipan may receive Personal Data through User’s use of the Services and, in consideration of the mutual obligations set out herein, the Parties agree to comply with the following provisions with respect to any Personal Data processed through the Services. Except as modified below, the terms of the Agreement shall remain in full force and effect.

2. DEFINITIONS
In addition to the terms defined in the Agreement and above, the following terms shall have the following meanings for the purposes of this DPA:

1. “Adequate Jurisdiction” means a country which ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data, as determined by the European Commission in the case that GDPR applies, and as determined by the UK Information Commissioner’s Office in the case that the UK GDPR applies.
2. “Affiliates” means an entity that directly or indirectly controls, is controlled by, or is under common control with, a Party.
3. “Approved Addendum” means the template addendum (version B.1.0) issued by the United Kingdom International Commissioner’s Office (ICO) and laid before the United Kingdom Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18 of such addendum.
4. “CCPA” means the California Consumer Privacy Act of 2018, Cal Civ. Code §1798.100 et seq., and all implementing regulations, as amended from time to time, such as by the California Privacy Rights Act of 2020 (“CPRA”).
5. “Data Protection Laws” means EU Data Protection Law, the CCPA, the Brazilian General Personal Data Protection Law, No. 13,709/2018 (the “LGPD”), and any other legislation protecting natural persons’ right to privacy with regard to the processing of Personal Data to the extent applicable to a Party’s Processing of Personal Data under the Services.
6. “Data Subject Rights” means the rights granted to Data Subjects under Data Protection Laws.
7. “EU Data Protection Law” means the GDPR, the e-Privacy Directive and national implementing legislation and the Swiss Federal Data Protection Act.
8. “GDPR” means the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“EU GDPR”) and, where applicable, the “UK GDPR” as defined in the Data Protection, Privacy and Electronic Communications (Amendment Etc.) (EU Exit) Regulations 2019.
9. “Member State” means a member state of the European Economic Area, together with Switzerland and the United Kingdom.
10. “SCCs” means (a) with respect to data transfers from the European Union to third countries that are not deemed adequate jurisdiction by the European Commission, Module 1 (controller to controller) of the Standard Contractual Clauses annexed to Commission Implementing Decision (EU) 2021/914 (the “EU SCCs”); (b) with respect to data transfers from the United Kingdom, Module 1 (controller to controller) of the EU SCCs as further amended by Part 2: Mandatory Clauses of the Approved Addendum (the “UK Mandatory Clauses”), together with any other necessary conforming changes to the EU SCCs (collectively, the “UK SCCs”); and (c) any updated, revised, or separate clauses relating to data transfer requirements of the GDPR issued from time to time by the European Commission, UK Information Commissioner’s Office, any other applicable data protection authority, or other body with competent authority and jurisdiction.
11. “Shared Personal Data” means Personal Data Processed by a Party to the extent such Party received that Personal Data from the other Party (that other party, the “Sharing Party” under this definition) in connection with the performance of the Agreement. For the avoidance of doubt, a Party is also deemed to “receive” Personal Data from a Sharing Party where the Sharing Party grants access to such Personal Data to the receiving Party.
12. “Transparency Notices” has the meaning given to it in clause 3.2(a).
13. The terms “Controller,” “Process,” “Processor,” “Data Subject,” and “Personal Data,” shall have the meanings given in EU Data Protection Law. To the extent Data Protection Laws use different terms to cover concepts similar to those covered under the aforementioned bold terms in this Section 2.13, then “Controller,” “Process,” “Processor,” “Data Subject,” and “Personal Data” shall have the meaning assigned to those different terms under such Data Protection Laws.

3. DATA PROCESSING; INDEPENDENT CONTROLLERS
1. Marzipan and User: (a) are independent Controllers with regard to the Shared Personal Data; and (b) will individually determine the purposes and means of its processing of Personal Data.
2. Each Party shall, with respect to the Processing of any Shared Personal Data, comply with Data Protection Laws, including as follows:
1) each Party shall provide all applicable notices to Data Subjects as required under Data Protection Laws for the lawful Processing by it of Shared Personal Data (“Transparency Notices“). User shall disclose its use of the Services and how Marzipan Processes Personal Data in its Transparency Notices. For example, for Users that have embedded Marzipan advertising Services in their mobile applications, this can be done by including the following language in the User’s Transparency Notices: “We work with Marzipan to deliver ads in our mobile application. For more information about Marzipan’s collection and use of your information visit: https://madex.world/privacy-policy;
2) each Party shall provide all required mechanisms for, and give effect to, applicable Data Subject Rights pursuant to Data Protection Laws and respond to inquiries by governmental authorities;
3) neither Party shall Process the Shared Personal Data for any purpose other than as set out in its Transparency Notice and unless such Processing is also authorized under Data Protection Laws and the Agreement;
4) each Party shall ensure that all of its employees engaged in the Processing of such Shared Personal Data act consistently with this DPA;
5) each Party shall implement technical and organisational security measures to prevent (i) the accidental, unlawful, or unauthorized destruction, loss, alteration, or disclosure of, or access to, Shared Personal Data or (ii) any other security incident that amounts to a “personal data breach” (as such term or similar term, such as “breach of the security system” or “data breach,” is defined under Data Protection Laws) of Shared Personal Data (in either case of (i) and (ii), a “Data Breach”); and
6) each Party agrees that any agreement with a subprocessor shall comply with the Data Protection Laws.
3. Each Party shall in particular, unless prohibited under applicable law, notify the other without undue delay (i) of any requests to exercise Data Subject Rights received by that Party regarding the Shared Personal Data, to the extent such notices are required under Data Protection Law; (ii) about regulatory inquiries involving the Processing of Shared Personal Data, and (iii) any Data Breach involving the Shared Personal Data to the extent resulting in material destruction, loss, alteration, or disclosure of, or access to, that Shared Personal Data.
4. User represents and warrants it has provided (and shall maintain) all required notices and obtained all necessary permissions and consents required under the Data Protection Laws from the relevant Data Subjects on behalf of Marzipan to lawfully permit Marzipan to process Personal Data as contemplated in the Agreement.
5. Where consent is the lawful basis for processing Personal Data or otherwise required for the use of the Services, User represents and warrants that it shall, at all times, make available, maintain, and make operational on the User’s properties: (i) a mechanism for obtaining such consent from Data Subjects in accordance with the requirements of the Data Protection Laws; and (ii) a mechanism for Data Subjects to withdraw such consent (opt-out) in accordance with the Data Protection Laws.
6. With respect to the CCPA, (i) the Shared Personal Data is disclosed to Marzipan for the limited and specified purposes of enabling Marzipan (or its demand partners) to bid on advertising inventory, serve Advertisements in connection with the Services, and optimize the Services, as further set forth in Marzipan’s Transparency Notices; (ii) Marzipan shall comply with the CCPA, including by providing the same level of privacy protection as required of Businesses under the CCPA; (iii) User may take reasonable and appropriate steps to ensure that Marzipan Processes Shared Personal Data in a manner consistent with User’s obligations under the CCPA; (iv) Marzipan shall notify User promptly after Marzipan makes a determination that it can no longer meet its obligations under the CCPA; and (v) User may, upon notice, take reasonable and appropriate steps to stop and remediate the unauthorized Processing of Shared Personal Data.


4. GENERAL

1. In the event of any conflict or discrepancy between the SCCs, the Agreement, and this DPA, the following order of precedence will apply: (i) the SCCs, (ii) this DPA, and (iii) the Agreement.
2. This DPA does not alter the limitations of liability set out in the Agreement.
3. This DPA will become effective on the date User has accepted the Agreement or the date on which the User started to use the Services. This DPA will terminate simultaneously and automatically upon the termination or expiration of the Agreement.
4. To the extent required by Data Protection Law, this DPA will be governed by the laws of the applicable jurisdiction. In all other cases, this DPA shall be governed by the laws of the jurisdiction set forth in the Agreement.

5. INTERNATIONAL TRANSFERS
1. The Parties agree that the SCCs shall apply to the transfer of, including access to, Shared Personal Data:
1) in the case of a transfer from User to Marzipan, where the processing of the Shared Personal Data by the User is subject to EU Data Protection Law or the LGPD; or
2) in the case of a transfer from Marzipan to User, where:

• the User is not established in an Adequate Jurisdiction;
• the Processing of the Shared Personal Data is subject to EU Data Protection Law or the LGPD or Marzipan is otherwise contractually required to enter into the SCCs.

2. For the purposes of the SCCs:
1) Annex 1.A (List of Parties) shall be deemed to incorporate the information in Schedule I;
2) Annex 1.B (Description of Transfer) shall be deemed to incorporate the information in Schedule III;
3) Annex 1.C (Competent Supervisory Authority) shall be deemed to refer to the supervisory authority identified in Schedule II;
4) Annex II (Technical and Organisational Measures) shall be deemed to incorporate the information in Schedule II;
5) The optional language within clause 7 of the SCCs does not apply;
6) The optional language within clause 11(a) of the SCCs does not apply;
7) Pursuant to clause 17, the SCCs will be governed by the laws of Ireland;
8) Pursuant to clause 18(b) of the SCCs, the Parties shall resolve disputes under the SCCs before the courts of Cyprus;
9) In relation to Table 4 referenced in the UK Mandatory Clauses, neither Party will be entitled to terminate the Approved Addendum in accordance with clause 19 of the UK Mandatory Clauses; and
10) For data exporters established within Brazil (for purposes of transfers of Shared Personal Data under the LGPD), the SCCs shall be governed by the laws of the Federative Republic of Brazil. Further, for such transfers under the LGPD, the applicable Data Protection Law shall be understood as the LGPD and the supervisory authority is the National Data Protection Authority in Brazil (ANPD).

Categories of data subjects whose data is transferred
The personal data transferred concern the following categories of data subjects:

• Individuals who are end-users of User’s mobile application(s).
• Individuals who are User’s marketing and business contacts.
• Individuals whose navigation of a mobile application has triggered an advertising bid request.
• Individuals who are User’s employees, agents, or representatives in Marzipan’s online platform.

Categories of data transferred
The personal data transferred concern the following categories of data:

• Mobile device advertising identifiers (e.g., IDFA/Google Ad ID, IP address);
• Device data such as make, model, operating system, device properties and settings, coarse location data;
• Click attribution data and transactional data;
• End user’s age, year of birth, gender, interests, if applicable (when publisher chooses to share such data pursuant to its privacy policy);
• Business contact and billing information (e.g., name, email address, billing address, telephone number, VAT number, bank account number to the extent considered personal data).

Sensitive data transferred (if applicable)
The personal data transferred concern the following categories of sensitive data: None.

The frequency of the transfer
In the case that Marzipan and the User agree to Services embedded on a live mobile application(s), the transfer will take place in real time every time an end-user accesses and navigates the application(s).

Nature of the processing and Purpose of the transfer(s) and further processing
The Personal Data is Processed for the purpose of providing the Services in accordance with the Agreement, including all permissible purposes set forth in the respective data importer’s Transparency Notice.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
The Parties will have access to certain Shared Personal Data for as long as the User maintains active Services. Marzipan will maintain Personal Data for up to two (2) years.