Terms & Conditions

I. Definitions

• A. “Account” means the account assigned by Real Audiences LLC to Advertiser to access and use the Hosted Service.
• B. “Account Balance” means the then-current total monetary balance attributed to Advertiser’s Account from which Advertiser may place bids and purchase Inventory for the delivery of Ad(s) using the Hosted Service.
• C. “Ad” means any material that promotes a brand, product or service, including video ads, interstitial ads, ad banners, badges, buttons and text links.
• D. “Ad Spend” means the total amount Advertiser deducts from its Account Balance for the purchase of Inventory.
• E. “Advertiser”, “you” or “your” means the company or other legal entity for which you are accepting this Agreement.
• F. “Advertiser Content” means any and all information, content and Ads that Advertiser uploads to or through, or delivers using, the Hosted Service.
• G. “Agreement” means this Real Audiences LLC Advertiser Agreement.
• H. “Effective Date” means the date on which Advertiser accepts this Agreement.
• I. “End User” means any end user of a mobile app or mobile website that views, is able to view, or interacts with an Ad delivered in connection with the Hosted Service.
• J. “Intellectual Property Rights” means, in any jurisdiction worldwide, all copyrights, trademark rights, patent rights, trade secret rights, moral rights, rights in domain name registrations, rights in confidential or proprietary information, privacy rights, rights of publicity, and any and all other intellectual property rights.
• K. “Order” means the purchase of Inventory for the delivery of Ad(s) resulting from a successful Advertiser bid using the Hosted Service.
• L. “Inventory” means elements of a website or mobile application that a Third Party Ad Exchange or publisher designates for the placement of Ads.
• M. “Hosted Service” means Real Audiences LLC’s proprietary hosted, on-demand, web-based real-time bidding platform for automated, real-time bidding to match Ads with Inventory. The Hosted Service allows for the targeted delivery of Ads on mobile websites and mobile applications, including all related user portals, technology and software, but specifically excluding the Real Audiences LLC Code. No software is delivered to or downloadable by Advertiser.
• N. “Real Audiences LLC” means the Real Audiences LLC company described in Section XI.J.
• O. “Real Audiences LLC Code” means Real Audiences LLC (i) pixels and scripts, including for conversion and click-thru tracking, ad tags, and impression counting, (ii) APIs for programmatic media buying and reporting, and (iii) all other computer software code made available by Real Audiences LLC.
• P. “Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including VAT (subject to reverse charge), GST (subject to reverse charge), excise, sales, use, consumption and withholding taxes.
• Q. “Third Party Ad Exchange” means a provider of Inventory to Real Audiences LLC (commonly referred to as a supply side platform (SSP), ad exchange or ad network).
• R. “Third Party Advertiser” means an advertiser (other than Advertiser) that may provide Ads for Advertiser to deliver via the Hosted Service.
• S. “User Data” means any data that Real Audiences LLC collects during delivery of Ads or performance of its obligations under this Agreement, including End User device information, End User session-based browsing behavior, number of impressions, http header information, and any other data that Advertiser elects to provide to Real Audiences LLC.
• T. “User Volunteered Data” means any personally identifiable information of End Users collected by Advertiser or a Third Party Advertiser via any Ad.
• U. “Website” means, collectively, the websites operated by Real Audiences LLC.

II. Hosted Service

• A. License to Hosted Service. Subject to this Agreement, Real Audiences LLC grants Advertiser a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicenseable right to access the Hosted Service solely to: (i) bid on, and place Orders for, Inventory on the Hosted Service; and (ii) receive reports of advertising requests, impressions and other data related to the delivery of Ads through the Hosted Service.
• B. Availability. The parties shall agree on the number of authorized Accounts furnished to Advertiser. Advertiser is solely responsible for the security of such Account(s), including passwords, and for the activities of any person accessing the Hosted Service using an Account, whether authorized or not. Real Audiences LLC will use commercially reasonable efforts to provide the Hosted Service on a continuous basis; however, availability is not guaranteed, and Real Audiences LLC reserves the right to modify the Hosted Service in whole or in part at any time in its sole discretion.
• C. Restrictions. Advertiser will not, and will not allow any third party to: (i) copy, distribute, rent, lease, lend, sublicense, transfer or make the Hosted Service available to any third party; (ii) decompile, reverse engineer or disassemble the Hosted Service; (iii) create derivative works based on the Hosted Service; (iv) modify, remove or obscure any proprietary notices; (v) create a substitute or similar service or product; (vi) use an anonymizing proxy to access the Hosted Service; (vii) use an unauthorized credit card to make a payment; (viii) do anything that could disable, over-burden or impair Real Audiences LLC servers or the proper working of the Hosted Service (including a denial of service attack); or (ix) gain, or attempt to gain, unauthorized access to the Hosted Service.
• D. Prohibited Activities. Advertiser is prohibited from accessing the Hosted Service to: (i) do anything illegal, obscene, misleading, discriminatory, defamatory, threatening or harassing; (ii) infringe, misappropriate or violate any Intellectual Property Rights; (iii) use its Account in any manner that results in complaints, claims, fees, fines, penalties or other liability; (iv) frame any trademark, logo or proprietary information of Real Audiences LLC or its affiliates; (v) generate queries, impressions or clicks through any automated, deceptive, fraudulent or invalid means (including click spam, robots, macro programs and Internet agents); (vi) encourage or require End Users to click on Ads through manipulative, deceptive, malicious or fraudulent methods; (vii) spread viruses, worms or other malicious computer programs; or (viii) use any robot, spider or manual process to monitor or copy the Hosted Service.
• E. Disclosures. Advertiser acknowledges that: (i) it is solely responsible for the accuracy of all information it provides (including bidding amounts, criteria and URLs); (ii) the highest bid may not win an auction; (iii) a seller of Inventory may exclude Advertiser or any Third Party Advertisers from bidding at any time for any reason; (iv) the Hosted Service allows for real-time transactions competing simultaneously against multiple other bids and offers; and (v) Advertiser has no recourse for any transaction that does or does not occur, and Real Audiences LLC makes no guarantee regarding the level of impressions, the timing of delivery, or the amount of any payment. Advertiser has no rights or licenses with respect to the Hosted Service except as expressly provided in this Agreement.

III. Ads and Advertiser Content

• A. Advertiser License. Advertiser grants Real Audiences, its affiliates, subsidiaries and suppliers a worldwide, royalty-free, non-exclusive, transferrable license under all of Advertiser’s Intellectual Property Rights to: (i) deliver, route and place Ads on Inventory via the Hosted Service; and (ii) use, display, perform, reproduce, distribute, publish, modify, adapt, translate and create derivative works from Advertiser Content solely in the manner and for the purposes for which the Hosted Service is used.
• B. Ad Requirements. Advertiser must ensure that all Ads comply with (collectively, the “Ad Requirements”): (i) Real Audiences’ technical requirements; (ii) the applicable publisher’s rules, guidelines, policies, size parameters and submission requirements; (iii) the Creative Policies located at realaudiences.com/creative-policy, as amended from time to time; (iv) any other policies Real Audiences makes available; and (v) the terms and conditions of this Agreement. If Advertiser is uncertain whether an Ad meets a publisher’s guidelines, it should contact a Real Audiences representative before placing the Ad.
• C. Ads Subject to Review. Real Audiences has no obligation to monitor or edit the content of Ads or Advertiser Content, but may screen, remove, edit or block any Ad or Advertiser Content that in its sole reasonable judgment violates the Ad Requirements or is appropriate to prevent errors or harm to the Hosted Service.
• D. Tracking. Real Audiences will determine in its sole discretion how to measure impressions, inquiries, conversions, clicks, offers, installations or other actions in connection with Ads, and all payments will be based on such measurements. Any third-party tracking tool, script, SDK or code will not bear on such measurement, and Real Audiences has no liability for malfunctions, discrepancies or circumstances that lead to wrong data.
• E. Copies of Ads. Advertiser is solely responsible for maintaining copies of all Ads and Advertiser Content. Real Audiences will not be liable to Advertiser or any third party for the deletion, loss or damage to Ads or Advertiser Content.

IV. Warranties

• A. Mutual Warranties. Each party represents and warrants that: (i) it has the legal authority to enter into and perform under this Agreement; (ii) doing so will not conflict with any other agreement with a third party; and (iii) it will comply with all applicable laws in its performance hereunder.
• B. Advertiser Warranties. Advertiser warrants that in its use of the Hosted Service it: (i) will comply with the Ad Requirements; (ii) will comply with all applicable privacy policies of the publishers of the Inventory; (iii) is solely responsible for all aspects of dealing with End Users and Third Party Advertisers; (iv) is solely responsible for correctly installing and using Real Audiences-provided conversion pixels; (v) has the lawful right to post and distribute Advertiser Content; and (vi) is solely responsible for the Advertiser Content, including its quality, accuracy, legality and appropriateness.
• C. Real Audiences Warranties. Real Audiences warrants that: (i) it owns or has sufficient rights in the Hosted Service to grant the rights granted herein; (ii) it will take commercially reasonable administrative, physical and technical measures to safeguard the security of Advertiser Content and will treat such information in accordance with the Real Audiences Privacy Policy; and (iii) the Hosted Service will not contain or transmit any computer viruses or other harmful or malicious code.
• D. No Other Warranties. Except as expressly provided herein, neither party makes any warranties of any kind, whether implied, statutory or otherwise, including any warranties of merchantability or fitness for a particular purpose. Real Audiences makes no representations regarding expected impressions, timing of delivery, revenue, the accuracy of information collected by conversion pixels, or any other anticipated benefits related to Advertiser’s use of the Hosted Service.

V. Fees; Billing & Payment

• A. Placement of Orders. All fees for the purchase of Inventory are automatically deducted from Advertiser’s Account Balance if the Account is pre-paid, or applied to it if the Account is credited. Orders and fees are calculated using Real Audiences’ statistics and data, which prevail over any other statistics. Once a bid is accepted, Advertiser has purchased that Inventory and a non-refundable Order is placed. Amounts spent are inclusive of all Real Audiences-added fees but exclusive of Taxes.
• B. Ad Spend Over/Under Budget. Real Audiences makes no guarantee that actual campaign Ad Spend via real-time bidding (“RTB”) will exactly match the pre-set campaign budget; actual spend will often exceed or fall below it. Where spend exceeds budget, Real Audiences will charge Advertiser’s Account for the difference. Advertiser will be billed for all impressions won even if they are not delivered as a result of faulty Ad tags.
• C. Funding Advertiser’s Account. Advertiser must have a sufficient Account Balance before placing bids. If no credit is provided by Real Audiences, Advertiser must pre-pay to fund the Account Balance, and may not bid until the funded amount has been credited. Advertiser authorizes Real Audiences to perform credit checks and obtain information from credit reporting agencies, banks and similar sources. Real Audiences may change limits or impose new restrictions on deposit amounts in its sole discretion.
• D. Payment of Fees. For credited Accounts, Real Audiences invoices Advertiser at the end of each calendar month. All fees are due within 30 days of the invoice date. Fees not paid within 30 days are subject to a finance charge equal to the lesser of 1.5% per month or the maximum permitted by law. Advertiser is responsible for Real Audiences’ collection costs (including legal fees) for past-due invoices. Unless otherwise specified, all amounts are in US dollars.
• E. Security Interest. To secure Advertiser’s obligations under this Agreement, Advertiser grants Real Audiences a lien on, and security interest in and to, the funds held in Advertiser’s Account.
• F. Violations. Advertiser is responsible to Real Audiences for its violation of the Ad Requirements. If any third party (including a Third Party Ad Exchange) imposes any penalty, fine or fee on Real Audiences arising out of Advertiser’s failure to comply, Advertiser will indemnify Real Audiences for those amounts, and authorizes Real Audiences to deduct them from its Account or otherwise invoice Advertiser.

VI. Term; Termination

• A. Term. This Agreement starts on the Effective Date and, unless earlier terminated, continues for one year (the “Initial Term”), automatically renewing for successive one-year terms unless either party gives written notice of intent not to renew at least sixty (60) days before the start of the Initial Term or any Renewal Term.
• B. Termination for Cause. Either party may terminate for cause: (i) on 30 days’ prior written notice of an uncured material breach; (ii) immediately on written notice if the other party becomes subject to bankruptcy, insolvency, receivership, liquidation or a similar proceeding; or (iii) immediately on written notice if the other party undergoes a change of control in favor of a direct competitor of the terminating party.
• C. Termination for Convenience. Advertiser may terminate this Agreement and close its Account for any or no reason on ten (10) days’ written notice, making full payment of all amounts owed. Real Audiences may terminate this Agreement and close Advertiser’s Account for any or no reason on prior written notice. Advertiser agrees to pay all amounts then owed upon any such termination.
• D. Suspension. Real Audiences may temporarily suspend service to the extent Advertiser: (i) fails to pay invoices when due; (ii) fails to abide by the Ad Requirements; or (iii) uses the Hosted Service in a manner that degrades its performance for other Real Audiences customers.
• E. Refund of Account Balance. Real Audiences will refund unused prepaid fees comprising Advertiser’s Account Balance (if any) within thirty (30) days of receiving written refund instructions: (i) upon any termination for cause or convenience by Advertiser; and (ii) upon any termination for convenience by Real Audiences.
• F. Effect of Termination. All provisions that by their nature should survive termination — including Sections IV.D, V.D–F, VII, VIII, IX, X and XI — survive expiration or termination. Upon termination, all licenses granted herein terminate and Advertiser must discontinue all use of the Hosted Service.

VII. Ownership

• A. Advertiser Property. As between the parties, Advertiser retains all ownership rights in and to any materials created, developed or provided by Advertiser in connection with this Agreement (including User Data, Ads and Advertiser Content) and all Intellectual Property Rights related to them.
• B. Real Audiences Property. As between the parties, Real Audiences retains all ownership rights in and to the Website, any content thereon, the Hosted Service, its technology, and any materials created, developed or provided by or on behalf of Real Audiences in connection with this Agreement, including all related Intellectual Property Rights.
• C. User Data. Real Audiences collects and receives User Data regarding Advertiser’s use of the Hosted Service. Advertiser agrees that Real Audiences may: (i) use such information for its internal business purposes in compliance with applicable privacy laws and self-regulatory regimes; (ii) disclose such information as required by law or legal process; and (iii) use and disclose such information when aggregated with similar information relating to other customers or End Users and when it does not specifically identify the Advertiser or End User. Advertiser may use User Data for its own internal business purposes in compliance with applicable privacy laws.
• D. User Volunteered Data. If Advertiser enables the collection of any User Volunteered Data via Ads, Advertiser must expressly disclose to the individual End User that such collection is solely on behalf of Advertiser (and not Real Audiences). As between Real Audiences and Advertiser, User Volunteered Data is the sole property and Confidential Information of Advertiser or its Third Party Advertiser, subject to their posted privacy policies.
• E. Feedback. Advertiser is not required to provide feedback or suggestions. To the extent it does, Advertiser assigns all right, title and interest in and to such Feedback to Real Audiences, which may use it without any obligation to provide compensation.

VIII. Limitation of Liability

• A. Except with respect to liabilities arising out of a party’s indemnification obligations, Advertiser’s breach of the licenses granted to it, or either party’s breach of its confidentiality obligations: (i) neither party is liable to the other for any punitive, incidental, indirect, special, reliance or consequential damages, including lost business, revenue or anticipated profits, whether based on breach of contract, tort (including negligence) or otherwise, and whether or not advised of the possibility of such damages; and (ii) in no event will either party’s liability and damages under this Agreement exceed the total fees paid to Real Audiences under this Agreement over the 12 months preceding the incident giving rise to liability.

IX. Confidentiality

• A. Confidential Information. “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential, including the terms of this Agreement, the features and functionality of the Hosted Service, information and data made available through the Hosted Service (including publisher information, website statistics and inventory prices), Advertiser Content, User Data and nonpublic business, financial, product and technical information. It does not include information that is or becomes public without breach, was already known to the Receiving Party without breach, is independently developed without breach, or is received from a third party without breach.
• B. Use and Disclosure Restrictions. Each party will not use the other party’s Confidential Information except as necessary to exercise its rights or perform its obligations under this Agreement, and will not disclose it except to employees, subcontractors and advisers who need to know it and are bound by protective written agreements. Each party will use all reasonable efforts to maintain confidentiality, but no less than the efforts it uses for its own proprietary information of similar nature. Disclosure is permitted where required by court or governmental order (with reasonable notice to the other party) or on a confidential basis to legal or financial advisors, current or prospective investors or acquirers, or as required under applicable securities regulations.

X. Indemnification

• A. Real Audiences Indemnification. Real Audiences will indemnify, defend and hold Advertiser and its directors, officers and employees harmless from third-party liabilities, damages or expenses (including reasonable attorneys’ fees) arising out of any third-party claim: (i) alleging that the technology underlying the Hosted Service infringes any third-party US patent or copyright issued or registered as of the Effective Date, or misappropriates any third-party trade secret; or (ii) attributable to the alleged or actual breach of Real Audiences’ representations and warranties set forth in this Agreement or its Privacy Policy.
• B. Advertiser Indemnification. Advertiser will indemnify, defend and hold Real Audiences and its directors, officers and employees harmless from any liabilities, damages or expenses (including reasonable attorneys’ fees) arising out of any third-party claim, fine or penalty to the extent attributable to: (i) Advertiser’s failure to secure all rights necessary to display the Ads; (ii) an allegation that the content or the products, services or goods advertised violate any applicable law; (iii) an allegation that the Ads infringe, violate or misappropriate any Intellectual Property Rights, or slander, defame or libel any person; or (iv) any alleged breach by Advertiser of its obligations under this Agreement.
• C. Procedure. As a precondition to indemnity coverage, the Indemnified Party must: (a) promptly notify the Indemnifying Party in writing of the claim (a failure to notify promptly only relieves the Indemnifying Party to the extent its defense is materially prejudiced); (b) grant the Indemnifying Party sole control of the defense or settlement; and (c) provide, at the Indemnifying Party’s expense, all reasonable assistance, information and authority for the defense or settlement, consistent with confidentiality obligations and privilege.
• D. Exclusions. Real Audiences assumes no indemnity liability for infringement claims arising out of the combination of the Hosted Service with items not provided by Real Audiences, any unauthorized modification of the Hosted Service, or claims arising out of Real Audiences’ compliance with Advertiser’s specifications or designs. If the Hosted Service is or is likely to be found infringing, Real Audiences may, at its own cost, obtain the right to continued use, or modify or replace the affected portion; if it cannot do so in a commercially reasonable manner, it may terminate this Agreement on written notice without liability. This Section X states Advertiser’s sole remedy and Real Audiences’ exclusive liability for any infringement of Intellectual Property Rights.

XI. Miscellaneous

• A. Relationship of the Parties. The parties are independent contractors; no partnership, franchise, joint venture, agency, fiduciary or employment relationship is created. There are no third-party beneficiaries to this Agreement.
• B. Assignment; Successors. Neither party may assign its rights or obligations without the prior written consent of the other, except that Real Audiences may assign without consent in connection with any merger, consolidation, reorganization, change of control or sale of all or substantially all of its related assets. Any attempted assignment in breach of this section is void. This Agreement binds and benefits the parties and their respective heirs, executors, administrators, successors and permitted assigns.
• C. Privacy Policy. Please refer to Real Audiences’ Privacy Policy for information on how Real Audiences collects, uses and discloses Advertiser’s personally identifiable information. By using the Hosted Service, Advertiser agrees to Real Audiences’ use, collection and disclosure of personally identifiable information in accordance with the Privacy Policy.
• D. Force Majeure. Except for payment obligations, neither party is responsible for any failure or delay in performance due to causes beyond its reasonable control, including labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of labor, energy or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties, and problems with the Internet generally.
• E. Notices. All notices shall be posted on the Website or platform or given in writing (email permitted). Notices sent by Advertiser are deemed received immediately if sent via email to legal@realaudiences.com (unless a non-delivery notice is received). Notices sent by Real Audiences are deemed received immediately upon posting to the Website or Hosted Service or upon being sent to Advertiser by email. Any other written notices are effective upon receipt.
• F. Marketing. Either party may include the name and logo of the other in customer or vendor lists.
• G. Waiver; Remedies; Invalid Terms. No failure or delay in exercising any right constitutes a waiver of that right; an effective waiver must be in writing and signed by the party against whom it is asserted. Remedies provided herein are in addition to, and not exclusive of, any other remedies at law or in equity. If any provision is held contrary to law, it will be modified by the court to best accomplish the objectives of the original provision to the fullest extent permitted, and the remaining provisions remain in effect.
• H. Headings; Construction. Section headings are for reference only. This Agreement shall be fairly interpreted in accordance with its terms, without strict construction in favor of or against either party. No provision will be construed against either party as the drafter.
• I. Dispute Resolution. Both parties agree to make reasonable, good-faith efforts to promptly resolve any dispute hereunder, including escalating within their respective organizations as appropriate, before commencing any action.
• J. Real Audiences Entity; Governing Law; Jurisdiction. Who you are contracting with under this Agreement, what law applies to any dispute arising out of or in connection with this Agreement, and which courts have jurisdiction over any such dispute depend on where you are domiciled.
• K. Confirmation of Information Provided. Advertiser authorizes Real Audiences, directly or through third-party designees, to make any inquiries it considers necessary to validate Advertiser’s identity. This may include asking for further information, requiring confirmation of ownership of the email address provided, ordering a credit report, or verifying information against third-party databases. Advertiser agrees to cooperate in any investigation by Real Audiences or any party acting on its behalf.
• L. Changes to Agreement. Real Audiences may change the terms of this Agreement on a going-forward basis at any time. Advertiser agrees to check this Agreement periodically for changes. Where a change materially modifies Advertiser’s rights or obligations, Real Audiences will make reasonable efforts to notify Advertiser (through a pop-up or banner within the platform, by email, or through similar mechanisms) and may require Advertiser to accept the changed Agreement. If Advertiser does not accept it, Advertiser must stop using the platform and service and notify Real Audiences at legal@realaudiences.com. Disputes are resolved under the version of this Agreement in effect at the time the dispute arose.
• M. Entire Agreement. This Agreement is the complete, final and exclusive agreement between the parties with respect to its subject matter, and supersedes all prior or contemporaneous representations, understandings, agreements or communications. No additional purchase order terms are effective. Subject to Section XI.L, any effective amendment must be in a writing executed by both parties.

XII. Arbitration

In the interest of resolving disputes in the most expedient and cost-effective manner, the parties agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Each party understands and agrees that, by entering into these terms, the parties are each waiving the right to a trial by jury or to participate in a class action, and that each party may bring claims against the other only in its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.

• B. Arbitration. Which arbitrators have jurisdiction over any dispute, which arbitration rules apply, and the location of any arbitration hearing depend on where you are domiciled.
• C. If you are domiciled in the United States, Mexico or Canada: Nothing waives either party’s right to bring an individual action in small claims court, pursue an enforcement action through an applicable agency, seek injunctive relief in a court of law, or file suit to address an intellectual property infringement claim. Any arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA Rules”), as modified by this Agreement, and administered by the AAA. Any hearing will take place in San Francisco County, California; if the claim is for $10,000 or less, Advertiser may choose a documents-only or telephone hearing. The arbitrator must issue a reasoned written decision, may not consolidate more than one person’s claims, and may not preside over any class proceeding. If any or all of this Section XII.C is found unenforceable, the entirety is null and void and the exclusive jurisdiction and venue in Section XI.J will govern.
• D. If you are domiciled anywhere except the United States, Mexico or Canada: Any dispute arising out of or in connection with this Agreement, including questions regarding its existence, validity or termination, shall be finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC), by one arbitrator appointed by the Chairman of the SIAC, in English. The arbitrator’s written decision is final and conclusive. Actions for injunctive or interim relief are not subject to arbitration and may be brought in any court with jurisdiction; the parties submit to the non-exclusive jurisdiction of the courts of Singapore for that purpose. Arbitration or legal proceedings are deemed sufficiently served if served at a party’s registered office.