Phunware and Phunware Advertising’s website is located at www.phunware.com (the “Website”) which assists in the purchase and sale of advertisements by connecting both mobile advertisers and publishers (the “Services”). The Website is owned and operated by Phunware, Inc. (referred as “Phunware Advertising,” “we,” “our,” or “us”). The terms “you,” “your,” and “yours” refer to anyone accessing, viewing, browsing, visiting or using our services in any manner.
IMPORTANT – PLEASE READ CAREFULLY – THESE TERMS AND CONDITIONS (THESE “TERMS”) CREATE A BINDING AGREEMENT WHICH GOVERNS USE OF THE WEBSITE AND SERVICES. BY ACCESSING, VIEWING, BROWSING, VISITING OR USING THE WEBSITE OR ANY CONTENT AND SERVICES OFFERED THROUGH THE WEBSITE YOU ACCEPT AND AGREE TO BE BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THESE TERMS. IF YOU DO NOT ACCEPT ANY OF THESE TERMS, PLEASE DO NOT USE THIS WEBSITE OR UTILIZE OUR SERVICES. FURTHER, IN ORDER TO ACCESS THIS WEBSITE, YOU MUST BE AT LEAST 13 YEARS OF AGE.
- 1. Authorized Use
- 1.1. Subject to your acceptance and compliance with these Terms, we grant you a non-exclusive, non-transferable, limited right to access use and display the Website and the materials thereon, provided that you fully comply with these Terms. You shall not interfere or attempt to interfere with the operation of the Website in any way through any means or device including, but not limited to, spamming, hacking, uploading computer viruses or time bombs, or the means expressly prohibited by these Terms. Except as expressly provided herein or otherwise allowed by us, you may not use the Website for any commercial purpose.
- 2. Content, Submissions, License and Warranties
- 2.1. Content: All materials displayed, performed or accessible through the Website or the Services, including, but not limited to, any information, data, text, software, music, sound, photographs, graphics, video, messages, tags or other materials (“Content”), are protected by copyright. Except as set forth herein, you shall not use or display the Website Content. In addition, you shall adhere to any and all copyright notices, information, and restrictions contained in or identified by any Content accessed or used in connection with the Website or the Services. Phunware Advertising reserves the right to remove any Content from the Website without notice at any time and for any reason.
- 2.2. Submissions: The Website may allow you to upload, post, publish, display or make available any information, data, text, software, music, sound, photographs, graphics, video, messages, tags, advertising or other materials, whether created by or for you, any advertiser, any website or other material published by or associated with any publisher (“Submission(s)”). Subject to the licenses you are granting hereunder, you retain all right, title and interest, including without limitation, all worldwide intellectual property rights, in and to your Submissions.
- 2.3. License
- 2.3.1. You hereby grant Phunware Advertising a worldwide, perpetual, royalty-free, irrevocable, non-exclusive, sub-licensable and transferable right and license to use, reproduce, store, host, index, cache, distribute (through multiple tiers), publicly perform, publicly display, (each of the foregoing in any form, medium or technology now known or later developed), modify and adapt including without limitation the right to adapt for streaming, downloading, broadcasting, distribution, publicly displaying, publicly performing (each of the foregoing in any form, medium or technology now known or later developed), create derivative works from, and exercise all aforesaid rights with respect to such derivative works, and otherwise exploit in any manner, your Submissions or any part thereof. You hereby expressly waive any and all so-called moral rights you may have in your Submissions.
- 2.3.2. In addition, we may provide bulletin boards, blogs, instant messaging, wikis and the like for posting user feedback, comments or other input, including but not limited to, on the Website. You understand and acknowledge that, subject and pursuant to the licenses set forth hereunder, we may display your feedback, comments or other input on the Website and use it for other marketing and business activities. In addition, we may in our sole discretion decide not to use your feedback, comments or other input, delete it from the Website, and even edit your feedback, comments or other input for both content and format. You hereby expressly waive any and all so-called moral rights you may have in your feedback, comments or other input.
- 3. Registration
- You are not required to register in order to access the Website. However, in order to use certain Services (SELF SERVE) and specific features of the Website, you may need to register and create a unique, password-protected account (“Account”). You agree to: (a) provide true, accurate, current, and complete information as prompted by the registration form; and (b) maintain and update such information to keep it true, accurate, current, and complete at all times. We reserve the right to delete your Account without warning if you are found to have misrepresented your age or any of the registration information submitted. You are responsible for maintaining the confidentiality of your password and email address. You agree to (a) immediately notify us of any unauthorized use of your password or Account, or any other breach of security, and (b) ensure that you exit from your Account at the end of each session. You will be solely responsible for safeguarding your password and also for any actions under your password and Account, whether authorized by you or not.
- 4. Services
- 4.1. Phunware Advertising offers the Services to all users, but it is solely your responsibility to determine if the Services are appropriate for your needs and solely your decision to use the Services either with a without a representative of Phunware Advertising. In addition, Phunware Advertising may, in its sole discretion, choose to modify, suspend or terminate the Services provided to you at any time and without notice or liability therefor.
- 4.2. If you elect to use the Services, you hereby represent, warrant and agree as follows:
- 4.2.1. You will not contribute to, submit or otherwise make available through the Services, or use the Services in connection with, any Submission that is infringing, libelous, defamatory, obscene, pornographic, abusive, offensive or otherwise violates any law or right of any third party.
- 4.2.2. You are responsible for all of your activity in connection with the Services and the Website. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Phunware Advertising user. You shall not use any part of the Website or Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store material that is deemed threatening or obscene, or engage in any kind of illegal activity. You will not run Maillist, Listserv, any form of auto-responder, or “spam” on the Website or through the Services, or any processes that run or are activated while you are not logged in.
- 4.2.3. You agree not to authorize or encourage any third party to generate fraudulent impressions of or fraudulent clicks on any Advertisement, including but not limited to, through repeated manual clicks, the use of robots or other automated query tools and/or computer generated search requests, and/or the fraudulent use of other search engine optimization services and/or software.
- 4.3. You have read and agree to Phunware’s Privacy Policy located at www.phunware.com/privacy. In the event you publish your own privacy policy whether you are required to do so or not, you agree to make reference to Phunware’s policy if it applies to your use of this website.
- 5. Additional Publisher Requirements: If you are a publisher using the Services, you hereby represent, warrant and agree as follows:
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- 5.1.1. Your Submissions may include, but are not limited to, mobile sites, applications, and device platforms (“Mobile Submissions”) and you may make them available for advertisement. You hereby grant Phunware Advertising the right to access, index, store and cache requests made from your Mobile Submissions to the Website and the Services, including by automated means.
- 5.1.2. You may not solicit or encourage others to click on Advertisements (as defined in Section 5.1.1) nor use any form of deception to increase clicks on Advertisements.
- 5.1.3. You may not, automatically, manually, or otherwise, click on Advertisements or use any other method of artificially increasing Advertisement clicks.
- 5.1.4. You may not solicit clicks from others on Advertisements, through methods including, but not limited to, offering fees, compensation or other payments for others viewing such Advertisements, placing images next to Advertisements or promising to raise money for third parties for such clicks.
- 6. Additional Advertiser Requirements: If you are an advertiser using the Services, you hereby represent, warrant and agree as follows:
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- 6.1.1. Your Submissions may include, but are not limited to, general advertisements, hyperlinks, banners, videos, and graphics (“Advertisements”) for display on a publisher’s Mobile Submissions or other Submissions. In addition, you agree to comply with the technical specifications provided by Phunware Advertising to enable proper display of the Advertisements in connection with the Services.
- 6.1.2. Phunware Advertising is not responsible for any aspect of your Advertisements or linked websites, including but not limited to, linked websites owned by third parties.
- 6.1.3. Your Advertisements and websites linked thereto shall not be deceptive or misleading and shall not include any adult content, drug related content, or other inappropriate content, as determined in Phunware Advertising’s sole discretion, without the prior written consent of Phunware Advertising.
- 6.1.4. You shall defend, indemnify and hold harmless Phunware Advertising, its subsidiaries, affiliates, its contractors and its licensors, and their respective directors, officers, employees and agents from and against any and all claims, demands, and expenses, including attorneys’ fees, arising out of your use of the Services and your Advertisements, including, without limitation, your violation of the terms of this Section 6.
- 7. Fees and Payments
- 7.1. General. The Services may require the payment of fees at prices set forth in Phunware Advertising User Portal located at ads.phunware.com or publisher.phunware.com (“Fees”). Phunware Advertising, at its sole discretion, retains the right to increase, decrease, or modify its Fees and to institute new Fees at any time upon prior notice to you, which may be sent via mail, electronic transmission or posted on the Website, including within these Terms.
- 7.2. Self Serve Advertisers and Publishers. If you are an advertiser, you must pre-pay all applicable Fees in connection with the Services you choose to use. If you are a publisher, you shall receive 50% of the net revenues actually received by Phunware Advertising in connection with Advertisements associated with your use of the Services (each an “Ad Payment”). Ad Payments shall be calculated on the first Monday of each calendar month (for the prior month) and delivered within 60 days thereafter; during such time Phunware Advertising shall review all clicks to determine that they are authentic and not fraudulent. Phunware Advertising shall send payments to advertisers only if such advertisers Ad Payment are greater than or equal to One Hundred Dollars ($100). If an advertiser’s Ad Payment for any month is less than One Hundred Dollars ($100), no check shall be sent until the check for the following calendar month is sent and the One Hundred Dollars ($100) threshold, inclusive of all Ad Payments held by Phunware Advertising, has been exceeded.
- 7.3. Publisher Payment Conditions. If you are a publisher, you agree that all Ad Payments are specifically conditioned upon Phunware Advertising’s receipt of full payment from the applicable advertiser. If Phunware Advertising does not receive the applicable payment in full from any such advertiser, Phunware Advertising shall have no liability or responsibility to you (as a publisher) with respect thereto, and you hereby release Phunware Advertising from liability for all unpaid amounts. If you dispute any Ad Payment made in connection with the Services, you must notify Phunware Advertising in writing within thirty (30) days of any such Ad Payment. Failure to so notify Phunware Advertising shall result in the waiver by you of any claims related to such disputed Ad Payment. All Ad Payments shall be calculated solely based on records maintained by Phunware Advertising. No other measurements or statistics of any kind shall be accepted by Phunware Advertising or have any effect under this Agreement. Phunware Advertising shall not be liable for any payment based on (i) any fraudulent clicks or inauthentic clicks generated by any person, robot, automated program or similar device or for fraudulent impressions similarly generated on any advertisements, as reasonably determined by Phunware Advertising; (ii) clicks commingled with a significant number of fraudulent clicks described in (i) above; or (iii) any breach of this Agreement by you. 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, and are solely responsible for, all applicable taxes or charges imposed by any government entity in connection with your use of the Services.
- 8. Marks
- Phunware, Phunware Advertising, the Phunware logo, the Phunware Advertising logo, as well as certain other of the words and logos displayed on the Website, constitute trademarks, trade names, or service marks (“Marks”) of Phunware Advertising or other entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with Phunware Advertising or those other entities.
- 9. Changes
- Phunware Advertising may change the Website Content, including these Terms, at the sole discretion of Phunware Advertising without notice. You shall be bound by any such updates or changes, so you should periodically review these Terms. If any modification is not acceptable to you, your sole remedy and recourse is to discontinue use of the Website and/or the Services.
- 10. Representations and Warranties
- As a condition of your use of the Website and/or the Services, you warrant to Phunware Advertising that you: (i) have all the requisite power and authority, corporate or otherwise, to agree to these Terms, conduct yourself and your business and to execute, deliver, and perform all of your obligations under these Terms; (ii) are the owner – or the authorized agent of the owner – of your Submissions; (iii) have the right to grant the licenses granted under these Terms; (iv) your performance under these Terms and/or the rights granted herein do not and will not conflict with or result in a breach or violation of any of the terms or provisions, or constitute a default under any contract or agreement, to which you are currently bound or will become bound in the future; (v) will only use the Website for lawful purposes in accordance with these Terms; (vi) agree and consent to our Privacy Policy; (vii) will not modify, adapt, translate, or reverse engineer any portion of the Website; (viii) will not remove any copyright, trademark or other proprietary rights notices contained in or on the Website, the Content or other material obtained via the Website; (ix) agree not to infringe the proprietary rights, intellectual property rights, rights of publicity or privacy rights of Phunware Advertising or third parties in connection with your use of the Website and will not upload, email, post, publish, distribute, transmit, submit or otherwise make available through the Website any content that infringes the intellectual property rights of any third party; (x) will not intentionally or unintentionally violate any applicable local, state, national or international law, including but not limited to any regulations having the force of law, while using or accessing the Website; (xi) will not harvest, gather or otherwise collect contact information of other users of the Website, for any purpose including, without limitation, transmitting any unsolicited advertising, junk mail, spam, or chain letters; (xii) will refrain from using unlawful, tortuous, profane, vulgar, harassing, abusive, threatening, inflammatory, libelous, defamatory, fraudulent or similarly harmful or discourteous language in any e-mail or form entry created through the Website; (xiii) will not interfere with others’ right of enjoyment of the Website; (xix) will not access or attempt to access unauthorized areas of the Website, tamper with other users’ postings, or unreasonably load or burden the Website servers; (xx) will not use the Website to display, distribute or make available any material that is sexual, pornographic, erotic, obscene, indecent or profane in its use of sexual language or description or depictions of sexual acts (hereinafter, “Pornographic Content”) nor upload, email, post, publish, distribute, transmit, submit or otherwise make available through the Website any Pornographic Content; and (xxi) are at least 13 years of age. Members who violate these Terms, at Phunware Advertising’s sole discretion, may have their Account suspended or terminated, and may be prohibited from using the Website and the Services thereafter.
- 11. Copyright Policy
- It is Phunware Advertising’s policy to comply with the Digital Millennium Copyright Act (“DMCA”). In accordance with the DMCA, Phunware Advertising shall: (i) block access to, or remove material that it believes in good faith infringes copyright of a third party; and (ii) remove and discontinue service to repeat infringers.
- If you believe that any Website Content or any Submission infringes one or more of your copyrights, please immediately notify Phunware Advertising’s Copyright Agent by means of a mailed or faxed notice (“Infringement Notice”) providing the information described below to the address or fax number listed below. If Phunware Advertising takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party that made such Content or Submission available by means of the most recent email address, if any, provided by such party to Phunware Advertising. Please be advised that you may be held liable for damages based on certain material misrepresentations contained in an Infringement Notice. Thus, if you are not sure that any Website Content or Submission infringes your copyright, you should consider first contacting an attorney.
- All Infringement Notices should include the following (see 17 U.S.C 512(c)(3) for further detail):
- (i) A signature, electronic or physical, of the copyright owner or a person authorized to act on their behalf;
- (ii) An identification of the copyright claimed to have been infringed;
- (iii) A description of the nature and location of the Content or Submission that you claim to infringe your copyright, in sufficient detail to permit Phunware Advertising to find and positively identify that Content or Submission;
- (iv) Your name, address, telephone number and email address; and
- (v) A statement by you: (i) that you believe in good faith that the use of the Content or Submission that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner’s agent; and, (ii) under penalty of perjury, that all of the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on their behalf.
- Infringement Notices should be sent to the following:
- Phunware, Inc.
7800 Shoal Creek Blvd. 210 W
Austin, Texas 78757
info@127.0.0.1 - If you receive a notice from us advising that we have received an Infringement Notice with respect to any of your Submissions, you may send us a counter notice to challenge the Infringement Notice. To be effective, the counter notice must be a written communication provided to our designated agent that includes substantially the following (please consult your legal counsel or see 17 U.S.C. Section 512(g)(3) to confirm these requirements):
- (i) A physical or electronic signature of the subscriber.
- (ii) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
- (iii) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
- (iv) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
- 12. Indemnification
- You agree to defend, indemnify and hold harmless Phunware Advertising, its subsidiaries, affiliates, its contractors and its licensors, and their respective directors, officers, employees and agents from and against any and all claims, demands, and expenses, including attorneys’ fees, arising out of your use of the Website, your Submissions, and your use of the Services, including but not limited to out of your violation of any representation or warranty contained in these Terms.
- 13. Disclaimer
- YOUR USE OF THE WEBSITE IS AT YOUR SOLE DISCRETION AND RISK. THE WEBSITE, THE SERVICES AND THE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. PHUNWARE ADVERTISING AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE WEBSITE, THE SERVICES, THE CONTENT AND YOUR SUBMISSIONS, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COURSE OF DEALING OR COURSE OF PERFORMANCE. PHUNWARE ADVERTISING AND ITS LICENSORS EXPRESSLY DISCLAIM ANY WARRANTIES: (I) REGARDING THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE WEBSITE, THE SERVICES, THE CONTENT, AND SUBMISSIONS; (II) REGARDING THE GOODS, SERVICES, ADVICE, INFORMATION OR LINKS PROVIDED BY ANY THIRD PARTY; (III) THAT THE WEBSITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS; OR (IV) THAT THE WEBSITE AND THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PHUNWARE ADVERTISING OR FROM YOUR USE OF THE WEBSITE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
- SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- 14. Limitation of Liability
- EXCEPT AS OTHERWISE EXPRESSLY STATED, INCLUDING BUT NOT LIMITED TO IN A LICENSE OR OTHER AGREEMENT GOVERNING THE USE OF SPECIFIC CONTENT, IN NO EVENT WILL PHUNWARE ADVERTISING, ITS CONTRACTORS OR ITS LICENSORS BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, REGARDLESS OF THE BASIS OR NATURE OF THE CLAIM, RESULTING FROM ANY USE OF THE WEBSITE, THE SERVICES, THE CONTENT OR SUBMISSIONS OR OF ANY HYPERLINKED WEB SITE, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR OTHERWISE, EVEN IF PHUNWARE ADVERTISING, ITS CONTRACTORS OR ITS LICENSORS WERE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH ABOVE ARE AN ESSENTIAL BASIS OF THE BARGAIN AND OF THE ALLOCATION OF RISKS BETWEEN THE PARTIES.
- SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- 15. Third Party Websites
- Phunware Advertising has not reviewed, and cannot review, any of the material, including computer software, made available through the websites to which the Website, Content or any Submission links, and that links to the Website. Phunware Advertising does not have any control over those non-Phunware Advertising websites, and is not responsible for their contents or their use. By linking to a non-Phunware Advertising website, Phunware Advertising does not represent or imply that it endorses such website. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses and other harmful or destructive content. Phunware Advertising disclaims any responsibility for any harm resulting from your use of non-Phunware Advertising websites.
- 16. Miscellaneous
- These Terms shall be governed by and construed in accordance with the laws of the State of California, USA, excluding its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Products is excluded and does not apply to these Terms. If any dispute relating in any way to these Terms or your use of the Website shall be submitted to confidential arbitration in Orange County, California, USA, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of California, USA and you consent to exclusive jurisdiction and venue in such courts. Arbitration under these Terms shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms shall be joined to an arbitration involving any other party subject to these Terms, whether through class arbitration proceedings or otherwise. The failure to require performance of any provision shall not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any portion of these Terms is found to be unenforceable, such portion will be modified to reflect the parties’ intention and only to the extent necessary to make it enforceable, and the remaining provisions of these Terms will remain in full force and effect. These Terms constitute the entire and exclusive understanding and agreement between you and us regarding this subject matter, and supersedes any and all prior or contemporaneous agreements or understandings, written and oral.
