Terms and Conditions

1. Preliminary provisions and Conclusion of General Terms and Conditions

1.1. This general terms and conditions (hereinafter, the “T&C”), together with the Order Form(s) attached and duly signed by the Parties in turn, is undersigned by MyChips S.r.l, with registered office in Viale Marconi 16, Imola (BO), 40026 – Italy, VAT No. IT04354271209, in the person of its legal representative (hereinafter, the “Company” and the “MyChips”), and the advertiser indicated on the Order Form (hereinafter the “Advertiser”) (the Company and the Advertiser are hereinafter collectively referred to as the “Parties” and individually as the “Party”). Hereinafter, the “Contract” shall refer to this T&C, the Order Form and any additional annexes, as well as any amendment and/or annex and/or addendum which is added or may be added to complete or amend the Contract itself. The Contract governs your use of Universal and MyChips (hereinafter, the “Products” and the “Platform”), a web application made available by Company.

1.2. Any reference, express or implied, to statutes or legislative provisions shall be construed as a reference to such statutes or legislative provision as amended respectively by other provisions (before or after the date on which this Contract is concluded) and shall include any measure, decree, regulation, resolution or other form of secondary legislation deriving from such statute or legislative provision. In the event of any discrepancy or conflict between the provisions of this T&C and the Order Form or other attachments, the following order of precedence shall apply: (1) Order Form; (2) T&C; (3) other annexes.

2. Description of Services

2.1. The Products are products which provides services in which advertisers (client promoting applications, products or services – on its behalf or on behalf of any third parties – to a mobile audience through the Platform and its network of publisher) are matched with publishers (advertising space owners) (the “Publisher”) through a dedicated algorithm of the Platform for distributing and promoting their applications, products or services (hereinafter, the “Services”) by means of “Mobile Campaigns” (with respect to each Publisher so matched with the Advertiser, the promotion and distribution of the Advertiser’s Application(s) via “Publisher’s Medium” for the purpose of generating a “Transaction”).

2.2. If Publisher is matched with an Advertiser through the Platform’s algorithm to distribute and promote the Advertiser’s Mobile Campaign, Advertiser, through the use of the Platform (MyChips’ proprietary Application Programming Interface tools and managed services made available by Company to its Advertisers, for the launch, management and distribution of specific Mobile Campaigns, which Publisher selected by the Advertiser to promote), shall have the opportunity to earn remuneration in connection with an “Action” (for example, mobile application installs, clicks, sales, registrations, impressions and leads), as more specifically set forth in the relevant Order Form.

3. Object of the Contract

3.1. Upon execution of this Contract and for its entire duration, the Company hereby grants to the Advertiser a revocable, non-transferable, non-exclusive and non-sublicensable right and license to use and access the Platforms solely in connection with the management of its own advertising campaigns for the purpose of marketing its Services through the Publisher’s Media, as more specifically set forth in the relevant Order Form.

3.2. The Advertiser shall comply with the following Mobile Campaign Restrictions:

a) any traffic derived from or associated with attribution fraud is strictly prohibited (this includes, but is not limited to: click spamming, click stuffing, placing tracking links as impression pixels, pre-caching clicks, ad-stacking, or targeting users excessively);

b) push notifications & discovery app traffic are not allowed on any Mobile Campaign unless approved by Us in advance;

c) Incent traffic is never allowed on non-incent campaigns.

4. Representations and warranties

4.1. Upon execution of the Contract, the Advertiser acknowledges and agrees to develop all aspects of the Mobile Campaign and to provide all related creative materials (the “Creatives”, which shall include, by way of example only, banners, links, videos, icons, titles, descriptions, advertising copy and rich media) necessary for the performance of the Mobile Campaign. The Advertiser represents and warrants that it has the right to authorize the Company to access, retrieve and use the Creative materials from the relevant application store.

4.2. The Advertiser acknowledge, ensure and agree that:

(i) all decisions relating to the performance of the Creative materials shall be made by the Company and/or the Publishers;

(ii) the Company shall not be liable for any acts or omissions of the Publishers;

(iii) the Company shall provide the Campaign tracking solution, which shall be used for all purposes under this Contract and shall serve as the sole reference for all matters relating to payments;

(iv) it shall not modify, circumvent, compromise, disable or otherwise interfere, directly or indirectly, with the tracking technology used by the Company to monitor the performance of the Mobile Campaigns;

(v) the Mobile Campaigns may be placed on mobile websites, mobile applications or through any other online and mobile marketing channels, as determined by the Company, based on the cost-per-install set forth in the relevant Order Form;

(vi) for the purposes of performing the activities contemplated under this Contract, the Company and the relevant Publishers shall be granted a non-exclusive, limited, transferable, sublicensable, worldwide, royalty-free and revocable licence to market, modify, display, perform, copy, transmit, distribute and promote the Creative materials and the Mobile Campaign(s in connection with any Services performed under this Contract;

(vii) the Company reserves the right to reject, omit, cancel, exclude or terminate any Mobile Campaign at any time and for any reason, without prior notice (it being understood that, in the event a Mobile Campaign is suspended prior to its completion for any reason not attributable to the Advertiser, the Company shall charge only for the portion of the Mobile Campaign actually delivered, rather than the full amount);
(viii) it shall not advertise services and/or products and/or materials in violation of applicable laws or regulations in the country or countries in which such advertising campaigns may be distributed;

(ix) it shall not provide Creative materials whose content is obscene, offensive, violent, defamatory, degrading to human dignity or blasphemous and, in particular, that contain: racist statements or advocacy of the inferiority or superiority of any race, people or culture over others or minorities; incitement to hatred or violence; sexually explicit, pornographic or child-pornographic content; threats or harassment; information or messages instructing on illegal activities, encouraging illegal conduct or capable of causing harm to third parties; incitement to dangerous behavior, imitation by minors, drug use or animal abuse;

(x) it shall not engage in any other unlawful or fraudulent conduct under applicable laws.

4.3. Given the above, the Advertiser also undertakes to:

(i) not defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities and You must not post private or confidential information via the Platform, including, without limitation, their or any other person’s credit card information, social security or alternate national identity numbers, non-public phone numbers or non-public email addresses;

(ii) comply with all laws, rules and regulations (applicable to your use of Products);

(iii) not change, modify, adapt or alter the Products or change, modify or alter another website so as to falsely imply that it is associated with Products;

(iv) not create or submit unwanted email, comments, or other forms of commercial or harassing communications (“Spam”) to any users of the Platform;

(v) not attempt to restrict another user from using Products and You must not encourage or facilitate violations of this Contract or any other Platform terms.

4.4. Each Party, insofar as it is entitled, respectively represents and warrants that::

(i) it is a company that is duly incorporated and existing according to the laws of the state to which it belongs, which has the full right to sign the Contract, without restriction;

(ii) it is not aware of existing legal proceedings or being under threat of legal action before any authority whatsoever, which could affect its ability to perform its obligations under the Contract;

(iii) all materials that may be provided in the execution of the Contract are its own property and/or available to it;

(iv) nothing in this Contract is intended to, nor shall it be construed to, create any agency, partnership, joint venture, employer–employee, or franchisor–franchisee relationship between the Parties.

5. Payment and refund

5.1. The Advertiser acknowledges and agrees that the Company may ask the Advertiser to make prepaid payments with the minimum amount being 500 USD with subsequent minimum deposits as funds get exhausted.

5.2. The Advertiser expressly authorizes the Company, or its designated payment processor, to charge any applicable fees to the payment method provided by the Advertiser and to process and store the related payment method information. To this end, the Advertiser represents and warrants that (i) the payment information provided is current and accurate, (ii) it is duly authorized to use any payment method provided for the purposes of the activities under this Contract, and (iii) it authorizes the Company, or its designated payment processor, to charge or debit such payment method for any applicable fees. If a payment method cannot be verified, is invalid, suspected of fraud or otherwise unacceptable for any reason, the Advertiser’s ability to use the Services may be immediately suspended. The Advertiser expressly agrees not to request any chargeback on its credit card or PayPal account and agrees to follow the dispute resolution process set forth herein.

5.3. The Advertiser shall remain solely responsible for all fees payable to the Company under this Contract. Such fees shall be: (i) calculated based on the total number of installations recorded by the Company; and (ii) based on royalties for the use of the Products.

5.4. The Parties agree and acknowledge that the net amount (i.e. the total amount due under the invoice) shall be paid in full and received by the Company within thirty (30) days (NET30). In the event of late payment of any amount due for any reason, such amount shall accrue a penalty equal to one (1) percentage point per month.

5.5. It is understood between the Parties that no refunds shall be issued to the Advertiser for funds already spent on Mobile Campaigns. The Advertiser may submit a written refund request to the Company for prepaid amounts not yet spent (the minimum balance eligible for a refund request is USD 100.00). The Company undertakes to respond to refund requests within ten (10) days of receipt. The Advertiser acknowledges and agrees that the Company uses third-party payment processors and therefore cannot provide any guarantee as to refund processing times.

5.6. It is expressly agreed that the Advertiser shall have no right to set off, withhold or otherwise deduct any amounts payable to the Company under this Contract against any amounts allegedly owed by the Company for any reason whatsoever.

5.7. In the event of suspected fraudulent activity, the Advertiser undertakes to promptly notify the Company, and in any case no later than ten (10) days from the moment such suspicion arises. Upon receipt of such notice, if the Company verifies the occurrence of the relevant fraudulent activity, it shall refund the related fees or payments to the Advertiser.

5.8. If the Services are subject to VAT under any applicable tax jurisdiction, VAT at the rate in force at the time of payment shall be added to and paid on the amount agreed in the relevant Order Form. Where the Advertiser is required by law or regulation to withhold or deduct any taxes, duties or levies from the fees payable to the Company in connection with the provision of the Services, the Advertiser shall, together with such payment, pay an additional amount so that the Company receives an amount equal to that which it would have received had no such withholding or deduction been required.

5.9. The Advertiser shall be solely and exclusively responsible for the payment of any fees or charges imposed by intermediary banks.

6. Contract Term

6.1. The Contract will enter into effect on the date on which it is signed and will remain in effect for 2 (two) years. Unless otherwise specified in the Order Form, the Contract shall be automatically renewed upon expiry for 1 (one) year at a time and shall regulate the relationship between the Parties for all the Services referred to in the Order Forms signed by them throughout the duration period referred to in this article.

7. Limitation of Liability

7.1. The Advertiser expressly acknowledges and agrees that the Company shall not, in any event, be liable for any direct, indirect, incidental, special, consequential, exemplary, or punitive damages, including, without limitation, any loss of profits, revenue, business opportunities, goodwill, data, use, or other intangible losses, arising from or relating to the Advertiser’s use of, or inability to use, the Products or otherwise arising out of this Contract, regardless of the cause and irrespective of the theory of liability, including negligence. The Advertiser further acknowledges and agrees that the Company assumes no responsibility or liability for any materials or content that are unlawful, offensive, contrary to public policy or morality, or in breach of any mandatory laws or regulations.

7.2. The Advertiser shall indemnify and hold harmless the Company from and against any and all claims, demands, damages, losses, liabilities, costs and expenses (including reasonable legal fees) arising out of or in connection with (i) the Creative materials, including their content, accuracy and legality, (ii) any alleged infringement of third-party rights (including intellectual property, image, data protection or consumer protection rights), and/or (iii) the Advertiser’s breach of this Contract or applicable laws. In no event shall the Company be liable for any indirect, consequential, incidental or punitive damages, including loss of profits, revenues or business opportunities, arising out of or in connection with the Mobile Campaign or the use of the Creative materials, except in cases of willful misconduct or gross negligence.

7.3. The Advertiser shall indemnify, defend, and hold harmless the Company from and against any and all claims, demands, actions, liabilities, damages, losses, costs, and expenses (including reasonable attorneys’ fees) asserted by any third party and arising out of, or connected with: (i) any breach by the Advertiser of this Contract or of any other document incorporated herein by reference; (ii) any use or misuse of Products by Advertiser; (iii) any violation by the Advertiser of applicable laws, regulations, or third-party rights. The Advertiser further agree that this indemnity obligation shall survive the termination of this Contract, and the Advertiser shall continue to be bound by this provision even after ceasing to use Products or terminating their Account.

7.4 The Advertiser acknowledges and accepts that, except in cases of willful misconduct or gross negligence, the maximum liability of the Company for any breach that is directly or indirectly related to the Contract shall not exceed the amount of the sums collected by the Company for the provision of the Services in the 12 (twelve) months prior to the breach. It is understood, however, that under no circumstances shall the Company be liable to the Advertiser for any indirect damage, however caused and/or incurred, nor for any alleged loss of profit claimed by the Advertiser, including, but not limited to, any economic/financial losses, business losses, losses of revenue, profits and/or goodwill. In particular, the Advertiser expressly acknowledges and accepts that this limitation of liability also functions in relation to services provided by third parties and that the Company cannot be held liable in any way for any damage and/or inefficiency and/or malfunction related to the use of third-party services that are directly commissioned by the Advertiser with regard to the Services.

8. Acceptable use

8.1. The Advertiser shall refrain from using the Products in any manner that causes, or could reasonably be expected to cause, damage to the Products or that compromises, impairs, or otherwise adversely affects the availability, functionality, performance, or accessibility of the Products. The Advertiser shall likewise refrain from any use of the Products that is unlawful, illicit, fraudulent, harmful, or associated with any unlawful, illicit, fraudulent, or harmful purpose or activity.

8.2. The Advertiser shall not use the Products to copy, store, host, transmit, send, utilize, publish, or distribute any material that consists of, contains, or is linked to any spyware, malware, virus, Trojan horse, worm, keystroke logger, rootkit, or any other harmful, malicious, or disruptive software, code, or device.

8.3. The Advertiser shall not engage in any form of systematic or automated data collection or extraction – including, without limitation, scraping, data mining, data extraction, or data harvesting – in connection with or relating to the Products, unless expressly authorized in advance by the Company in writing.

9. Data Protection

9.1. In performing their respective contractual obligations, the Parties undertake to comply with Regulation (EU) 2016/679 (the “Regulation”) and, to this end, shall adopt all physical, technical, organizational and security measures that are necessary and appropriate to ensure the integrity and accuracy of the personal data processed, as well as the lawfulness of such processing. Personal data shall be processed solely to the extent strictly necessary for the performance of the activities contemplated under the Contract. The provision of personal data is necessary for the achievement of the aforementioned purposes and, in the absence thereof, such purposes may not be achieved, in whole or in part. Personal data shall be used by the Parties only in accordance with the methods and procedures necessary to pursue the purposes set forth herein. The Parties hereby represent and acknowledge that, in connection with the processing of personal data under the Contract, the data subjects shall be entitled to exercise their rights under the Regulation, including the right to access, erasure, rectification, updating, completion, objection to processing, as well as any other rights provided for therein.

10. Non-competition

10.1. The Advertiser undertakes not to engage in activities that are directly competitive with the Company’s Products or services covered by this Contract. In particular, the Advertiser shall not develop, or commission third parties to develop, technologies or platforms that are substantially similar to those provided by the Company for the purpose of promoting or operating competing services, whether directly or indirectly, during the term of this Contract.

11. Confidentiality

11.1. Without As part of the negotiation and execution of the Contract, the Parties shall become aware of trade secrets and/or confidential information and/or material subject to intellectual and industrial property rights relating to and/or in any case connected to the activities of both Parties, including, but not limited to, information concerning the MyChips’ technologies, materials relating to the Services, presentations, business plans and/or marketing plans and information concerning research and development and/or technical information and/or trade secrets described, disclosed and/or provided, verbally and/or by means of presentations and/or in writing, in any type of format regardless of whether or not such information is marked and/or expressly indicated as “Restricted” or “Confidential” (hereinafter, the “Confidential Information”). Without limiting the foregoing, Confidential Information includes the content of the Contract and any Confidential Information disclosed prior to signing the Contract.

11.2. Without prejudice to what is elsewhere provided for in this article, with reference to the Contract, the Parties agree that the full text thereof may not be disclosed and/or shown to any third party, without prejudice to the legal advisors and any auditing firms appointed by each Party during the period prior to the signing of the Contract.

11.3. Each Party shall not disclose or communicate in any way (or cause to be disclosed or communicated in any way) any Confidential Information to any third party, except to the Parties and persons to whom the owner of the Confidential Information has given prior written consent to disclose the Confidential Information. Without prejudice to this prohibition, where disclosure is authorised, each Party shall at all times and in an appropriate manner communicate that such disclosure is made in strict confidence and that Confidential Information shall be kept as such in accordance with the Contract. The Party receiving the Confidential Information referred to in this article shall be responsible for any unauthorised disclosure or use of the Confidential Information outside the activities referred to in the Contract and for purposes and/or objectives other than those referred to in the Contract.

11.4. Each Party shall take all measures, actions and precautions reasonably necessary to ensure that none of the Confidential Information is disclosed or communicated in any way to third parties other than as provided for in the Contract and/or necessary for the purposes and/or objectives set forth in the Contract.

11.5. The commitments referred to in this article shall survive the term and shall remain in force for a minimum period of 5 (five) years and, in any event, for as long as the Confidential Information remains available and under the control of the Party holding it and the possibility of protection remains under applicable law.

11.6. Each Party acknowledges and agrees that any breach or attempted breach of this confidentiality clause will cause irreparable harm to the other Party and, accordingly, each Party agrees that the non-defaulting Party shall be entitled to obtain, by virtue of law, interim and/or urgent injunctive relief ante causam and temporary, preliminary and permanent injunctive relief in order to suppress and inhibit such breach, threat of breach or any other further breach of the Contract without the need to prove the damage; the right to obtain an injunction, however, is in addition to any other remedy that the non-defaulting Party may have under the law.

11.7. Notwithstanding the foregoing, in case of violation or attempted violation of this Article 11, the Company shall be entitled to claim a penalty equal to 3 (three) times the consideration set forth in the Order Form from the Advertiser, without prejudice to compensation for the greater damages.

12. Breaches of this Contract

12.1. Without prejudice to any other rights or remedies available to the Company under this Contract, in the event that the Advertiser breaches, or is reasonably suspected of breaching, any provision of this Contract, the Company may, at its sole discretion, take any measures it deems appropriate to address or mitigate such breach. Such measures may include, without limitation:

a) the immediate suspension or restriction of the Advertiser’s access to the Platform;

b) the imposition of fees or charges to compensate the Company for any resulting loss, damage, or diminished revenue;

c) the permanent prohibition of the Advertiser’s access to the Platform;

d) the blocking or disabling of any devices or accounts associated with the Advertiser’s IP address;

e) contacting the Advertiser’s internet service provider to request that access to the Products be restricted or blocked; and/or

f) initiating legal or judicial proceedings against the Advertiser.

13. Withdrawal and termination

13.1. Each Party may withdraw from the Contract by sending a notice via certified email a minimum of 30 (thirty) days in advance, without prejudice, until the date of termination of the Contract, to i) the Company’s right to obtain payment of the fees set out in the Order Form and reimbursement of all expenses already incurred from the Advertiser and ii) the Advertiser’s right to receive all Services agreed in the Order Form.

13.2. Without prejudice to the right to claim damages, the Company may terminate this Contract, pursuant to and for the purposes of Article 1456 of the Italian Civil Code, by notifying the other Party via certified email that it wishes to avail itself of this express termination clause, if the Advertiser violates any of the following clauses: 3. (“Object of the Contract”); 4. (“Representations and warranties”); 5. (“Payment and refound”); 8. (“Acceptable use”); 10. (“Non-competition”); 11. (“Confidentiality”). In any case, the Company’s right to obtain the payment of the fees set out in the Order Form and the reimbursement of all expenses already incurred until the actual termination of the Contract from the Advertiser remains unaffected.

14. Assignment of the Contract

14.1. Neither Party may assign any right or obligation under this Contract without the written consent of the other Party.

15. Force Majeure

15.1. No Party shall be liable to the other Party for any delay or failure to perform its obligations if such delay or failure results from force majeure.

15.2. In the event that the force majeure should continue for a period of time exceeding 30 (thirty) days, each Party shall have the right to withdraw from this Contract with immediate effect, by simple written notice, renouncing any claim from now on for compensation in relation to any delay and default resulting from force majeure

16. General terms

16.1. By signing the Contract, the Parties do not intend to form any association or joint venture, nor do they intend to establish an agency or procurement relationship.

16.2. The Contract contains the overall agreement reached by the Parties with respect to its subject matter and prevails over all previous communications, declarations, understandings and agreements, both verbal and written, reached by the Parties.

16.3. Any tolerance by a Party toward the conduct of the other, committed in violation of any provision of the Contract, shall not constitute a waiver of the rights deriving from the violated provision, nor of the right to demand the proper performance of all provisions of the Contract.

16.4. The failure or delay in exercising a right due to a part under the Contract does not imply a waiver thereof.

16.5. The invalidity or ineffectiveness of one or more provisions of the Contract shall not result in the invalidity or ineffectiveness of the remaining provisions of the Contract, therefore, in case of ascertained invalidity or ineffectiveness, the Parties hereby undertake to replace the provision(s) declared invalid or ineffective of the Contract.

16.6. Any amendment, variation or waiver of this Contract will not be valid and binding unless established in a written document signed by both Parties.

16.7. Communications between the Parties shall take place in the manner and at the addresses indicated in the Order Form.

17. Jurisdiction and Applicable Law

17.1. Contract, as well as any other agreement connected with it, shall be governed by Italian law.

17.2. All disputes relating to the Contract, including those concerning its interpretation, execution, validity and legal existence, shall be referred to the exclusive jurisdiction of the Court of Milan.

The Company may revise this T&C from time-to-time. Revised T&C will apply to the use of the Products from the date of the publication of the revised Contract. Please check this page regularly to ensure you are familiar with the current version.