TERMS OF SERVICE FOR ADvantage SOFTWARE DEVELOPMENT KIT

1. GENERAL

  1. The ADvantage Software Development Kit (hereinafter referred to as “ADvantage SDK”) and ancillary services which are licensed and provided for You, subject to these Terms of Service (hereinafter referred to as “the Terms of Service”).

  2. The ADvantage SDK is a product by Digitalsunray Media GmbH (hereinafter referred to as “Digitalsunray”).

  3. Deviating or additional provisions, in particular terms and conditions used by You, do not become part of the agreement between You and Digitalsunray unless the contrary is expressly declared to You in writing by Digitalsunray.

2. DEFINITIONS

  1. Applicable Laws” means any applicable domestic or foreign law including any statute, subordinate legislation or treaty, and the common law and equity, any applicable judgment, injunction, award or decree of any domestic or foreign legislative, executive, judicial or administrative body or person having or purporting to have jurisdiction in the relevant circumstances or instrumentality thereof including any federal, state, provincial or municipal body or entity, in each case that relate to the use of the ADvantage SDK.

  2. Authorized Users” means Your employees and/or other sub-contractors using the ADvantage SDK exclusively on computers owned or controlled by You and exclusively for the purposes covered by Your license.

  3. Claims” means any fines, damages (general, special and punitive), legal fees, costs, charges, expenses, lost profits, attorneys’ fees, engineering and other technical expert fees, settlement amounts, judgments and interest, arising from or related to any Third Party Claim, Third Party cause of action, Third Party demand, or Third Party lawsuit, any tax or penalty, any judicial or administrative investigation, or any inquiry or proceeding or any settlement thereof.

  4. Derivative Work” means Derivative Work that is subject to a trial license. any software or other work of authorship, whether in source or object form, that is, or is part of, an application for End Users created by You incorporating or using the ADvantage SDK or elements thereof. "Trial Derivative Work" means a Derivative Work that is subject to a trial license.

  5. Device” means each computing device able to install a Derivative Work, including, but not limited to, smartphones or tablets.

  6. End User” means any individual or legal entity that uses and has permission to use an application which is or contains a Derivative Work for any purpose other than software development.

  7. Intellectual Property Rights” means all intellectual property rights, industrial property rights and other similar rights recognized throughout the world, whether existing under statute or at common law or equity, now or hereafter in force or recognized, including:

    1. copyrights, rights in trade secrets, rights in marks, patents, design rights, data base rights, rights in processes, rights in methods, moral rights, mask work rights, publicity and personality rights, and privacy rights; and

    2. any application or right to apply for any of the rights referred to in paragraph

    3. , and all enhancements, improvements, renewals, extensions and restorations.

  8. Limited Applications License” means a license that entitles you to create and distribute a limited number of applications (Derivative Works).

  9. Person” means an individual (and the heirs, executors, administrators, or other legal representatives of an individual), partnership, joint venture, corporation, company, government (or any department or agency or instrumentality thereof), trustee, trust, unincorporated organization, or any other legal entity of any kind or nature irrespective of jurisdiction of origin or formation.

  10. Privacy Policy” means Digitalsunray’s Privacy Policy which may be amended, modified, supplemented or restated from time to time in accordance with its terms by Digitalsunray.

  11. Product” means any version of the ADvantage SDK and ancillary services including licenses, extensions, entitlement to upgrades and/or Support services (if applicable subject to the Product Description) made available for You through the Digitalsunray website. “Product Description” means the description of the Product you purchased from Digitalsunray on their website (at the time You place Your order) or the information provided to You in the order confirmation Digitalsunray sends to You upon order acceptance.

  12. Software” means all computer software and accompanying documentation (including all future upgrades, additions, substitutions, and other modifications thereof).

  13. Support” means the support services for the Software provided by Digitalsunray during the respective Support period; You may or may not be entitled to Support subject to the Product You ordered (see Product Description). Regular support hours are Monday to Friday from 10:00 AM to 5:00 PM (CET/CEST), no Support is provided on Saturday, Sunday and recognized public and bank holidays in Austria. Digitalsunray reserves the right to limit or suspend the Support subject to prior announcement on up to seven working days per year. You will be pre-notified about working days with limited or suspended service at least one week ahead.

  14. Third Party” means any person that is neither You nor Digitalsunray nor an Authorized User.

  15. Third Party Software” means any Software that is subject to Intellectual Property Rights of a Third Party.

  16. ADvantage Software Development Kit” or “ADvantage SDK” or “ADvantage WebSDK” means software developed by Digitalsunray, which enables You to monetize Your applications and/or websites. This software may be incorporated by You in Your Derivative Works and therefore may be also provided to Your end costumer under the provisions of the Terms of Service. The ADvantage SDK consists of:

    1. ADvantage SDK library – the binary package or a URL (WebSDK);
    2. ADvantage SDK sample code;
    3. ADvantage SDK sample content; and
    4. ADvantage SDK documentation.
  17. You” (or “Your”) means any individual or legal entity that orders and/or uses a Product and exercises permissions granted by this Terms of Service.

3. ACCEPTING THE TERMS OF SERVICE

  1. If You do not wish to be bound by the Terms of Service, You may not use the ADvantage SDK. To use the ADvantage SDK, You must first agree to the Terms of Service.

  2. You can accept the Terms of Service by actually using the ADvantage SDK (the use of the ADvantage SDK therefore constitutes Your acceptance of the Terms of Service from that point onwards).

  3. If You are consenting to the Terms of Service on behalf of Your employer or other entity, You represent and warrant that You have full legal authority to bind Your employer or such entity to the Terms of Service. If You do not have the prerequisite authority, You may not accept the Terms of Service or use the ADvantage SDK on behalf of Your employer or other entity.

4. DEVELOPER ACCOUNT

  1. You may only use the ADvantage SDK after registering to Digitalsunray. When registering You shall provide true, accurate, current and complete information about Yourself. You shall maintain and promptly update the information provided upon registration to keep it true, accurate, current and complete all times.

5. ADvantage SDK LICENSE

  1. General license provisions

    1. Different types of licenses. Subject to the general license provisions (section 1) and the applicable additional license provisions set out below, You may use the ADvantage SDK by obtaining either

      • a trial license for a trial version; or

      • a free of charge Commercial License for a commercial version

      • a payed Commercial License for a commercial version

      of the ADvantage SDK.

  2. Grant of license. Subject to your full and ongoing compliance with the Terms of Service and unless expressly agreed otherwise in written form in an individual agreement between Digitalsunray and You, Digitalsunray hereby grants to You, and You accept, a limited, non-exclusive, non-transferrable, non- assignable, revocable license to use the ADvantage SDK only as authorized in the Terms of Service during the term defined in the Product Description. Subject to the Product ordered by You (as indicated in the Product Description), the license granted to You by Digitalsunray is restricted to use for creation and distribution of only a limited number of Derivative Works.

  3. Scope of use. Subject to the Product Description, the license granted to You entitles You to use the ADvantage SDK as follows:

    1. You may create and install the allowed number of copies as indicated in the Product Description or, if no allowed number of copies is indicated in the Product description, a reasonable number of copies of the ADvantage SDK on apps and/or websites that You own or control and that are solely used by You or Authorized Users for the sole purpose of creating Your own Derivative Works;

    2. You may copy the ADvantage SDK or parts thereof solely for the purpose of incorporating it/them into Your Derivative Works created in accordance with the Terms of Service, in particular section 4, below and for the purpose of distributing and making available such Derivative Works to End Users;

    3. You may make available and/or distribute the ADvantage SDK or parts thereof solely as an integral part of Your Derivative Works; and

    4. You are allowed to distribute the URL of the documentation for internal use by You and Authorized Users only for the purposes described above.

    You need to seek Digitalsunray’s prior approval if You intend to use the ADvantage SDK and/or documentation files delivered with it in any other way and/or for any other purpose than stated above. In particular the granted license does not and will under no circumstances entitle You to use the ADvantage SDK or elements thereof in a way that enables Third Parties to modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create Derivate Works or any Software providing developers with similar features as the ADvantage SDK and parts thereof without obtaining the permission required to do so from Digitalsunray. Furthermore, except to the extent

    • allowed under this section 3,

    • required by applicable Third Party licenses and/or

    • required for proper use of the Advantage SDK in conformity with the Terms of Service, You may not copy (except for backup purposes), modify, adapt, redistribute, decompile, reverse engineer or disassemble the ADvantage SDK or use the ADvantage SDK or elements thereof in a way that enables Third Parties to do so. You may not use the ADvantage SDK to create any Software providing developers with similar features as the ADvantage SDK or parts thereof.

  4. Limitation of the license to lawful and ethical use. You are obliged to use the ADvantage SDK in a responsible manner and in compliance with all Applicable Laws and only for purposes that are permitted by the Terms of Service. Use of the ADvantage SDK for unlawful or unethical purposes, in particular creation of applications covering such purposes, is prohibited. If a Derivative Work You created does not meet the legal requirements of a country, region or territory, You undertake not to release, distribute or otherwise make available that Derivative Work in the respective country, region or territory. In general You may not use the ADvantage SDK to

    1. develop or publish any application that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;

    2. harm minors in any way;

    3. develop or publish any application that interferes with, disrupts, damages, or accesses inan unauthorized manner the servers, networks, or other properties or services of Digitalsunray or any Third Party including, but not limited to, mobile communications carrier and internet providers;

    4. forge or otherwise manipulate in order to disguise the origin of any application.

  5. Additional license provisions for trial versions only

    1. Trial versions of the ADvantage SDK are provided for the sole purpose of enabling You to try out the ADvantage SDK; it does not entitle You to distribute or otherwise make publicly available Derivative Works created under such license. Trial versions contain a watermark indicating that distribution and making available is prohibited. The watermark will be shown on every ad position of Your applications.

    2. Circumvention of the Watermark as well as use of the trial version for any other purposes, in particular any commercial purposes is strictly prohibited and may lead to Your prosecution for intentional infringement of Digitalsunray’s rights under civil as well as criminal law.

      1. Digitalsunray reserves the right at any time and from time to time – at Digitalsunray’s sole discretion - to

        • technically disable or limit the usage of the ADvantage SDK; and/or

        • revoke the license granted to You under the Terms of Service entirely or any part thereof at any time.

        • In order to designate Derivative Works You created by using a trial version of the ADvantage SDK as Trial Derivative Works, this versions of the ADvantage SDK are equipped with technical measures ensuring that such applications will contain a logo of ADvantage that will be shown on any ad slot of Your application

    3. Any attempt to disable or circumvent the above measures is strictly prohibited and may lead to Your prosecution for intentional infringement of Digitalsunray’s rights under civil as well as criminal law.

  6. Additional license provisions for Commercial Licenses (free of charge and paid version)

    1. Commercial licenses are intended by Digitalsunray to be granted to traders only. By ordering a product that includes a commercial license you state that you are a trader and that no consumer protection law applies to your order. If within your jurisdiction you qualify as a consumer that is entitled to a right of withdrawal from a contract concluded based on your order after Digitalsunray's performance of service has begun, Digitalsunray does not consent to sell you a product that includes a commercial license.

    2. If you order a product that includes a commercial license as a consumer residing in a member state of the European union you give express consent and acknowledgment that you are ordering supply of digital content which is not supplied on a tangible medium and that therefore, as soon as Digitalsunray has provided you with a commercial license key and thus begun to deliver performance under the contract, you irrevocably lose your consumer's right of withdrawal.

    3. Subject to Your order, Your commercial license may be a Limited Applications Licenses or an Unlimited Applications License. The restrictions set out in section 1, above, apply to both types of licenses. In particular, an Unlimited Applications License does not entitle You to enable a Third Party to use the ADvantage SDK for creation of Derivative Works, e.g. by sharing Your access to the ADvantage SDK or Elements thereof with a Third Party.

    4. Upon acceptance of the Terms of Service You may obtain one or more license keys by getting a free license or paying the Product license fee indicated in your contract. License orders are final, Digitalsunray does not refund license fees. You understand that after payment You will have no recourse for receiving a full or partial refund of the license fee, unless the Product Description includes or makes reference to a return policy of Digitalsunray.

    5. You will indemnify Digitalsunray and hold us harmless against any errors and / or issues related to your app / website.

    6. For the observance of the data protection, but not exclusively, according to GDPR (DSGVO) you are responsible to the end customer.

    7. When the contract is canceled the license key will get invalid and you must remove the SDK and all of its components as soon as possible, at the latest within 5 days from your website / app. After the 5th day we will charge you, € 500 per day + € 0,50 per thousand ad requests (TKP).
      On the first day the license will be switched to a trial license and will get a watermark.

  7. Additional license provisions for Commercial Free Licenses (free of charge version only)

    1. Digitalsunray checks the integration of Advantage SDK in your app at regular intervals. If irregularities or problems are detected, such as but not limited to:

      1. Wrong category of Your app / website

      2. Ads do not show up on Your app / website

      3. Clicks on the banner do not work or are not counted correctly

      4. Counting pixels do not work correctly

      5. Parts or the entire content of Your app / website overlay the advertisement

      6. Your app / website or any other Third Party service, prevents the features and functionalities of the ADvantage SDK

    2. You have 14 days after receiving a message from Digitalsunray, in this time period you must resolve these issue(s) and make a statement. If these issue(s) could not be solved within 14 days, you must inform us as soon as possible with a timeline.
      Until clarification or resolution of the facts, outstanding payments will be suspended.

    3. If You do not reply within 14 days, your contract will be canceled automatically and your license will be invalid. In this case the disbursement of all open advertising revenue will not be paid off. We also reserve the right to pass on all recourse claims of our customers to You.

    4. Digitalsunray reserves the right to terminate the contract or license immediately and without warning if you comply to any of the following points, such as but not limited to:

      1. Unauthorized use of the ADvantage SDK in apps / websites where you are not the owner or if you share the license key with another app / websites

      2. If your app / website violates the law or morality

      3. If your app / website disseminates dangerous or harmful content

      4. If your app / website spreads spam, misleading content, or if you try to deceive the end users

      5. If your app / website stirs up or spreads hatred against individuals, minorities, religions, disabilities, gender, age, nationality, veteran status, sexual orientation, etc.

      6. If someone feels annoyed by the content including user comments, blog, etc. on their app / website (keyword: cyberbullying) or someone is threatened (mental and / or physical)

      7. If your app / website disseminates violent or cruel content

      8. If your app / website disseminates pornographic or sexually explicit content

      9. If your app / website forces or persuade the user to click on the advertisements

      10. If your app / website tries to overlay/overlap or hides the advertisement from the end user

      The disbursement of all open advertising revenue will be stopped immediately and not paid off. We also reserve the right to pass on all recourse claims of our customers to you.
      If you violate the law, we also direct the incident directly to the law enforcement agencies.

  8. Prevention of unauthorized use

    1. Digitalsunray is entitled to make the grant of a license subject to use of a license key provided to You by Digitalsunray. You acknowledge and consent that Digitalsunray reserves the right to gather the following data on key usage from You, Authorized Users and End Users:

      1. Used license key;

      2. Bundle Identifier / Packagename / Domain

      3. Ad Server Side Id (if used)

      4. Ad Server Position (if used)

      5. Device Type

      6. User Agent

      7. SDK Version

      8. IP Address (anonymized)

      to ensure that the Product is being used in accordance with the Terms of Service.

  9. Sharing a license key provided to You by Digitalsunray with any Third Party is strictly prohibited and may lead to Your Prosecution for intentional infringement of Digitalsunray’s rights under civil as well as criminal law. If Your license key is stolen or if you suspect any unauthorized use of the license key you undertake to promptly notify Digitalsunray. You undertake to cooperate with and assist Digitalsunray in preventing, identifying and prosecuting any unauthorized use of license keys and/or the ADvantage SDK.

  10. No transfer of ownership in intellectual property

    1. Digitalsunray agrees that it obtains no right, title or interest from You (or Your licensors) under the Terms of Service in or to any software applications that You develop using the ADvantage SDK, including any intellectual property rights that subsist in those applications.

    2. Except for the limited and revocable license granted to You herein, the Terms of Service do not transfer any Intellectual Property Rights from Digitalsunray to You or to any Third Parties. The Terms of Service do not grant You any right or license to use trademarks or any other protected designations of Digitalsunray.

  11. Third Party Software

    1. The ADvantage SDK may be provided to You in a way that includes Third Party Software. If so, such Third Party Software is listed below the Terms of Service as an Annex. Such Third Party Software may be subject to separate terms as defined by the right holder(s) of such Third Party Software and indicated in the Annex. You undertake to comply with such terms.

    2. The delivery of the Product does not convey a license, nor imply any rights, to use Third Party Software. You acknowledge and hereby accept that in some instances You may be required to obtain a separate license of the right holder(s) prior to using their Software and/or to making available Derivative Works into which their Software has been incorporated. You shall be solely responsible to verify whether You are required to obtain a license. If applicable, You shall be solely responsible to obtain such a license.

6. PROVISION OF THE ADVANTAGE SDK

  1. You acknowledge and hereby accept that the nature and form of the ADvantage SDK may be subject to temporary and/or permanent changes without prior notice (including but not limited to updates, bug fixes and patches) and that future versions of the ADvantage SDK may be incompatible with applications developed on previous versions of the ADvantage SDK.

  2. Digitalsunray reserves the right at any time and from time to time – at Digitalsunray’s sole discretion - to stop providing the ADvantage SDK, features within the ADvantage SDK, extensions, plugins or services to You or to any Third Party with or without prior notice.

  3. You acknowledge and agree that Digitalsunray shall not be liable to You or to any Third Party for any modification of the nature and form of the ADvantage SDK or for stopping to provide the ADvantage SDK.

  4. You understand that You have under no circumstances no legal Claim whatsoever by which Digitalsunray would be obliged to provide You with technical support concerning the ADvantage SDK and it’s parts, except explicitly stated otherwise in the Product Description or agreed individually in a separate written agreement.

7. CONFIDENTIALITY

  1. Information You receive in the course of buying and using a Product and its components, in particular the ADvantage SDK, is considered confidential, including, but not limited to, information on content, functionality and range of functions of the ADvantage SDK. You shall treat all such information as confidential and transfer this confidentiality obligations to all Authorized Users. No confidential information may be disclosed to Third Parties without the prior written consent of Digitalsunray.

  2. The foregoing obligation, however, shall not apply to any part of the information that

    1. has been disclosed in publicly available sources of information,

    2. is, through none of Your or Your Authorized Users’ fault, hereafter disclosed in publicly available sources of information,

    3. is now in Your possession without any obligation of confidentiality, or

    4. has been or is hereafter rightfully disclosed to You by a Third Party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that Third Party.

8. PRIVACY

  1. You must comply with all Applicable Laws including all applicable privacy laws; and with Digitalsunray’s publicly disseminated Privacy Policy and Terms of Service“ at any time. You shall be solely responsible to obtain all necessary consents and approvals of Your End Users. In particular You are responsible to provide End Users with all information required and to obtain all required consents in the required form under Applicable Law.

  2. If Your Derivative Work is an application that collects, uses, processes, transmits and/or discloses End User Data, You represent and warrant that You will have obtained all necessary consents from the End user to the collection, use, processing, transmission and/or disclosure of such information. In addition, the use of location data should be limited solely as necessary to provide services or functionality for Your application (e.g., the use of collected personal information for marketing purposes is prohibited, unless permitted under Applicable Law and expressly consented to by the End User). If Your Derivative Work stores personal or sensitive information provided by users, it must do so securely.

  3. Digitalsunray does not track individual usage of the applications (Derivative Works) you created. However, You acknowledge and hereby agree that Digitalsunray may anonymously track and report the distribution of Your Derivative Works through use of information set out in section 5. ADvantage SDK LICENSE 10.a. You must indicate to Your End Users, either in the app itself or in Your terms of service, that the distribution of Your application may be anonymously tracked and reported and You must provide such information to the users. If required by Applicable Law, You must obtain the End User’s consent hereto.

  4. In particular if you intend to distribute or make available within the European Union Derivative Works that gain access to any other information stored in the mobile device of the End User than information solely required for the purpose of enabling You to provide a service requested by the End-User, you undertake to get the End User’s consent based on the required comprehensive information, including but not limited to the type of collected information, the purposes for which such information is being collected, the way it is being used and, if applicable the Third Parties to which such information will be transmitted. The aforesaid is applicable to any information irrespective of such information qualifying as “personal data” or not. You are aware that under the EU privacy regime you need to meet in particular the following requirements:

    1. Ask for consent before the app starts to retrieve or place information on the device, i.e., before installation of the app. Such consent has to be freely given, specific and informed;

    2. ask for granular consent for each type of data the app will access; at least, if accessed, for the following categories: Location, Contacts, Unique Device Identifier, Identity of the data subject, Identity of the phone, Credit card and payment data, Telephony and SMS, Browsing history, Email, Social networks credentials and Biometrics;

    3. be aware that consent does not legitimize excessive or disproportionate data processing;

    4. provide well-defined and comprehensible purposes of the data processing in advance to installation of the app, and not change these purposes without renewed consent;

    5. provide comprehensive information if the data will be used for third party purposes, such as advertising or analytics;

    6. allow users to revoke their consent and uninstall the app, and delete data where appropriate;

    7. respect the principle of data minimization and only collect those data that are strictly necessary to perform the desired functionality; take the necessary organizational and technical measures to ensure the protection of the personal data You process, at all stages of the design and implementation of the application (privacy by design);

    8. provide a single point of contact for the users of the application. Provide a readable, understandable and easily accessible privacy policy, which at a minimum informs users about: who they are (identity and contact details), what precise categories of personal data the app wants to collect and process, why the data processing is necessary (for what precise purposes), whether data will be disclosed to third parties (not just a generic but a specific description to whom the data will be disclosed), what rights users have, in terms of withdrawal of consent and deletion of data;

    9. enable app users to exercise their rights of access, rectification, erasure and their right to object to data processing and inform them about the existence of these mechanisms;

    10. define a reasonable retention period for data collected with the app and predefine a period of inactivity after which the account will be treated as expired;

    11. with regard to apps aimed at children: pay attention to the age limit defining children or minors in national legislation, choose the most restrictive data processing approach in full respect of the principles of data minimization and purpose limitation, refrain from processing children's data for behavioural advertising purposes, either directly or indirectly and refrain from collecting data through the children about their relatives and/or friends.

  5. If any consent from the End User to the collection, use, processing, transmission and/or disclosure of such End User Data is denied or withdrawn, You may not collect, use, process, transmit and/or disclose the End User Data or perform any other actions for which the End Users consent has been denied or withdrawn.

9. WAIVER OF VOIDABILITY

  1. VOIDABILITY OF THE CONTRACT FOR MISTAKE (MEANING THAT YOUR DECLARATION OF INTENT UPON ORDERING A PRODUCT, WAS GIVEN UNAWARE OR IN ERROR ABOUT ITS CONTENTS OR IN LACK OF INTENTION OF MAKING A DECLARATION WITH THIS CONTENT) IS EXCLUDED.

  2. VOIDAVILITY FOR LAESIO ENORMIS (MEANING THAT THE VALUE OF THE ORDERED SERVICES IS LESS THAN HALF OF THE FAIR VALUE OF THE CONSIDERATION) IS EXCLUDED.

10. DISCLAIMER OF WARRANTIES

  1. YOU EXPRESSLY UNDERSTAND AND AGREE THE FOLLOWING:

  2. THE ADVANTAGE SDK IS PROVIDED ON AN „AS IS“ AND „AS AVAILABLE“ BASIS.

  3. YOUR USE OF THE ADVANTAGE SDK IS AT YOUR SOLE RISK. DIGITALSUNRAY EXPRESSLY DISCLAIMS ALL WARRANTIES, ENDORSEMENTS, GUARANTEES, CONDITIONS AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF DURABILITY, MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, ACCURACY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE.

  4. IN PARTICULAR, AND WITHOUT LIMITING THE FOREGOING, DIGITALSUNRAY MAKES NO WARRANTY THAT:

    1. THE ADVANTAGE SDK OR ITS FUNCTIONALITY AND QUALITY WILL MEET YOUR REQUIREMENTS AND EXPECTATIONS.

    2. THE PROVISION OF THE ADVANTAGE SDK WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE OF DEFICIENCIES AND INTERRUPTIONS.

    3. ANY DEFICIENCIES AND ERRORS IN THE SOFTWARE WILL BE CORRECTED.

  5. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DIGITALSUNRAY SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS AND CONDITIONS.

  6. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY RESULTING FROM SUCH WARRANTIES. ACCORDINGLY, IF PROVISIONS OF SUCH JURISDICTIONS OVERRULE THE CHOICE OF LAW MADE IN THE TERMS OF SERVICE, SOME OF THE ABOVE LIMITATIONS ABOVE MAY NOT APPLY TO YOU.

11. LIMITATION OF LIABILITY FOR DAMAGES

  1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DIGITALSUNRAY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF DIGITALSUNRAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), (i) ARISING OUT OF OR RESULTING FROM THE USE OR THE INABILITY TO USE THE ADVANTAGE SDK OR (ii) RESULTING FROM PRODUCT WARRANTIES, END USER ASSISTANCE AND PRODUCT SUPPORT WITH RESPECT TO THE ADVANTAGE SDK AND/OR APPLICATIONS DEVELOPED WITH THE HELP OF THE ADVANTAGE SDK. IN PARTICULAR, TO THE EXTENT PERMISSIBLE UNDER AUSTRIAN LAW, LIABILITY FOR SLIGHT NEGLIGENCE IS EXCLUDED.

  2. ANY MATERIAL OR SOFTWARE USED THROUGH THE ADVANTAGE SDK IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA OR ANY OTHER DAMAGE THAT RESULTS FROM THE USE OF THE ADVANTAGE SDK, RESPECTIVELY.

  3. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR (AND THAT DIGITALSUNRAY HAS NO RESPONSIBILITY TO YOU OR TO ANY THIRD PARTY FOR) ANY DERIVATIVE WORK YOU CREATE, DISTRIBUTE AND/OR MAKE OTHERWISE PUBLICLY AVAILABLE AND FOR THE CONSEQUENCES OF YOUR ACTIONS (INCLUDING LOSS OR DAMAGE WHICH YOU OR THIRDPARTIES MAY SUFFER).

12. INDEMNIFICATION

  1. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD DIGITALSUNRAY AND ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CO- BRANDERS AND INDEPENDENT CONTRACTORS HARMLESS FROM AND AGAINST ANY LOSS, LIABILITY, CLAIM, DEMAND, DAMAGES, COSTS AND EXPENSES INCLUDING REASONABLE ATTORNEYS FEES AND DISBURSEMENTS, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR USE OF THE ADVANTAGE SDK, YOUR APPLICATIONS DEVELOPED ON THE ADVANTAGE SDK THAT INFRINGE ANY COPYRIGHT, TRADEMARK, TRADE SECRET, TRADE DRESS, PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT OF ANY PERSON OR DEFAMES ANY PERSON OR VIOLATES THEIR RIGHTS OF PUBLICITY OR PRIVACY, A VIOLATION OF ANY APPLICABLE LAWS OR A VIOLATION OF THE TERMS OF SERVICE.

13. TERM AND TERMINATION

  1. The agreement between You and Digitalsunray which is concluded based on the Terms of Service is effective upon confirmation of acceptance of Your Product order by Digitalsunray or by installing the ADvantage SDK in Your App.

  2. Licenses granted to You by Digitalsunray shall remain in full force and effect for the period of time indicated in the Product Description unless terminated earlier by either party. Termination is possible for either party at any time. You may terminate the agreement prematurely by sending a written notice that You irrevocably cease to use the version of the ADvantage SDK licensed to You free of charge. Digitalsunray may terminate any licenses and services provided to You free of charge by deactivating the license key(s) provided to You by Digitalsunray.

  3. If the agreement includes a term based Commercial License and unless otherwise provided in the Product Description the agreement will repeatedly be renewed for another term equal to the initial term unless You or Digitalsunray object to renewal with a written notice of 30 days prior to the end of the term.

  4. Upon good cause, either party may at any time terminate the agreement concluded between Digitalsunray and You under the Terms of Service with immediate effect. In particular, the following constitutes a good cause for immediate termination by Digitalsunray: If You use the ADvantage SDK in a way that is in breach of the granted license, in particular if You provide access to the ADvantage SDK to Third Parties; if You infringe any Intellectual Property Rights of Digitalsunray or other Third Parties; if You breach other essential provisions of the Terms of Service.

  5. After termination You are no longer entitled to use the ADvantage SDK; neither are you entitled to any other services by Digitalsunray. Digitalsunray is entitled to deny access to Your developer account and to take technical measures to prevent further use of the ADvantage SDK. The distribution and making available of Derivative Works that were completed and made publicly available in accordance with the Terms of Service prior to termination may be continued.

14. CHANGES

  1. Digitalsunray holds the sole right to modify or replace the Terms of Service. If changes have been made, a new version of the Terms of Service will be published and made available on the website where the ADvantage SDK is made available.

  2. It is agreed that the continued utilization of the ADvantage SDK after the publication of a new version or modification of the Terms of Service will be regarded as an acceptance of the new or modified Terms of Service. In any case, a new version or modification of the Terms of Service is deemed accepted by You four weeks after its publication.

15. APPLICABLE LAW

  1. The Terms of Service and the use of the ADvantage SDK shall be governed by Austrian Law with the exclusion of the UN Sales Convention and the Austrian conflict of law rules of Austrian private international law.

  2. Any disputes arising out of or in connection with the Terms of Service and the use of the ADvantage SDK, including disputes on its conclusion, binding effect, amendment and termination, shall be subject to exclusive jurisdiction of the competent courts at Digitalsunray’s registered seat (i.e. Vienna, Austria).

16. MISCELLANEOUS

  1. Unless otherwise agreed by Digitalsunray in written form, the Terms of Service, the Product Description and the Digitalsunray Privacy Rules form the entire agreement between You and Digitalsunray concerning the subject matter herein, and supersedes all prior communications, proposals and representations with respect to the ADvantage SDK or any other subject matter covered herein.

  2. Notwithstanding any provision hereof, for all purposes of the Terms of Service, it is acknowledged that You shall be and act independently and not as partner, joint venturer, agent, employee or employer of Digitalsunray. You shall not have any authority to assume or create any obligation for or on behalf of Digitalsunray, expressively or implied, and shall not attempt to bind Digitalsunray to any contract.

  3. Except as provided in the Terms of Service, neither party may use the name, trademarks, trade names, domain names or other designation of the other party without the written approval of the other party. Digitalsunray may use Your name, trademarks, trade names, domain name and other designations in connection with disclosing the nature of Your relationship with Digitalsunray.

  4. The failure of any party at any time to enforce or require performance of any provision hereof shall in no way operate as a waiver or affect the right of such party at a later time to enforce the same. Any waiver of an obligation, agreement or condition contained herein shall be valid and effective only if in writing and signed by the party to whom such compliance is owed. No such waiver shall be deemed to be a waiver of any subsequent breach, Claim or failure to perform, or of any obligation, agreement or condition other than the one expressly waived.

  5. If any provision of the Terms of Service is held invalid or unenforceable, the provision will be construed to reflect the party’s original intent. Despite the invalidity or unenforceability of such provision, all other provisions of the Terms of Service will remain in full force and effect.