Terms for Advertisers

These Advertising Terms of Service (“Terms”) are entered into by Devnet Inc., a Delaware corporation, (“Devnet”) and the entity executing these Terms or that accepts these Terms electronically (“Advertiser,” collectively, the “Parties”). These Terms govern Advertiser’s use of Devnet’s advertising services (“Services”) that are accessible through an account provided to Advertiser in connection with these Terms. Advertiser’s use of the Services constitutes Advertiser’s agreement to these Terms. These Terms are subject to change in accordance with Section 13 below. Advertiser is responsible for reviewing these Terms on a regular basis. These Terms apply to all visitors and all who access Devnet’s website or Services.

In these Terms, “Advertiser” includes any individual, agent, employee, representative, network, parent, subsidiary, affiliate, successor, related entities, assigns, and all other individuals or entities acting on Advertiser’s behalf, at Advertiser’s direction, or under Advertiser’s control.

In consideration of the foregoing, the Parties agree as follows:

Services.Advertiser authorises Devnet to place Advertiser’s advertising materials (“Ads”) on any website (“Website”). Advertiser authorises Devnet to use automated tools to format Ads. Devnet does not monitor, review, or edit content of Ads, but has the right (though not the obligation) to remove or disable access to any Ads for any or no reason, including but not limited to, Ads that, in Devnet’s sole discretion, violate these Terms. Devnet may take these actions without prior notification to Advertiser. Removal or disabling of access to Ads shall be at Devnet’s sole discretion.

1.1 Devnet may modify Services at any time. Some Services features are identified as “Beta” or as otherwise unsupported or confidential (collectively, “Beta Features”). Advertiser may not disclose any information from Beta Features or the terms or existence of any non-public Beta Features.

1.2 Certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. Devnet reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of Services, with or without notice, all without liability to Advertiser for any interruption, modification, or discontinuation of Services for any function or feature thereof. Advertiser understands and agrees that Devnet has no obligation to maintain, support, upgrade, or update Services, or to provide all or any specific content through the Services.

1.3 The Websites are operated by various third parties, not Devnet. Devnet does not operate or control in any way any content, information, products or services available on the Websites and is not responsible or liable for any third party content offered or promoted on the Websites.

Access to the Services and Policies.In order to use the Services Advertiser is required to have an Account (the “Account”). Devnet may refuse or limit Advertiser’s access to the Services at Devnet’s discretion. In order to verify Advertiser’s Account, Devnet may ask for information from Advertiser, including, but not limited to, verification of Advertiser’s name, address, and other identifying information. By applying to use the Services, if Advertiser is an individual, Advertiser confirms that it is at least 18 years old. Advertiser may only have one Account and Accounts may be terminated according to the provisions below.

Advertiser is solely responsible for its use of Services (including but not limited to access to and use of Account and safeguarding usernames and passwords) (“Use”). Use is subject to applicable Devnet policies as modified from time to time, including prohibition of malware as set forth in Section 3 below and the Devnet policies described in more detail in the Account, including but not limited to the policies found in the Campaign Management and Account Management consoles in the Account(“the Policies”). Advertiser authorises Devnet to modify Ads as described in the Policies.

Advertiser shall not, and will not authorize any third party to, (i) generate automated, fraudulent or otherwise invalid impressions, inquiries, clicks or conversions, (ii) conceal conversions where they are required to be disclosed, (iii) use any automated means or form of scraping or data extraction to access, query or otherwise collect Devnet advertising-related information from any Website except as expressly permitted by Devnet, (iv) attempt to interfere with the proper functioning of Services; (v) advertise substances, services, products or materials which contravene any applicable laws, rules or regulations (“Applicable Laws”) in any country in which Ads are displayed, placed or otherwise made available; (vi) violate any technical specifications posted on any Website, and/or the Policies; or (vii) engage in any other illegal or fraudulent business practice under the laws of any state or country where an Ad is made available.

Ad Serving.Advertiser will not provide Ads that contain or connect to malware, spyware, viruses, Trojan horses, worms, unwanted software, or any other malicious code or knowingly breach or circumvent any Services security measure.
Testing.Advertiser authorises Devnet to periodically conduct tests that may affect Advertiser’s Use of Services, including Ad formatting, targeting, quality, ranking, performance, pricing, and bid adjustments. To ensure the timeliness and validity of test results, Advertiser authorizes Devnet to conduct such tests without notice or compensation to Advertiser.
Ad Cancellation.Either party may cancel any Ad at any time before placement, but if Advertiser cancels an Ad after a commitment date provided by Devnet (e.g., a reservation-based campaign), then Advertiser is responsible for any cancellation fees communicated by Devnet to Advertiser, and the Ad may still be published. Cancelled Ads will generally cease serving within 8 business hours and Advertiser remains obligated to pay all charges resulting from served Ads. Advertiser must cancel Ads through Advertiser’s Account.
Warranty, Rights and Obligations.

6.1 Advertiser warrants that:

(a) Advertiser has all necessary authority, rights and permissions to submit the Ads and grant the rights described in these Terms for Devnet to operate Services, including but not limited to all necessary permissions, releases and/or waivers for any and all intellectual property rights and/or rights of publicity, in or to the Ads.

(b) all information and authorizations provided by or on behalf of Advertiser are complete, accurate and current, and

(i) violate or encourage violation of any Applicable Laws or cause injury to any person); or

(ii) infringe or misappropriate any copyright, trademark, trade secret, patent, or other intellectual property right of any third party or violate any other rights of a third party, including, without limitation, any rights of privacy or publicity or any contractual rights, or contain any material which may be harmful, abusive, obscene, threatening or defamatory.

(d) The Ads will not:

(i) violate or encourage violation of any Applicable Laws, or cause injury to any person; or

Consent to Contact.In connection with Advertiser’s Use, Devnet may contact Advertiser regarding service announcements, administrative messages, and other information. Advertiser may opt out of some of those communications in Advertiser’s Account settings. For information about how to contact Devnet, please visit Advertiser’s Account page.
Make-Goods.As provided in the Account, for reservation-based advertising on websites through banners or other ad formats (“Display Ads”) Devnet will deliver any agreed-upon aggregate number of Display Ads by the end of the campaign, provided that if Devnet fails to do so, then Advertiser’s sole remedy is to make a claim within seven (7) days from the end of the campaign (the “Claim Period”). If Devnet confirms the accuracy of the claim, then Devnet will not charge Advertiser for the undelivered Display Ads or, if Advertiser has already paid, at Devnet’s reasonable discretion, Devnet will provide for (i) advertising credits, which must be used within 60 days of issuance of the credits (“Use-By Date”), (ii) placement of the Display Ads in a position Devnet deems comparable within 60 days of Devnet’s confirmation of the accuracy of the claim or (iii) an extension of the term of the campaign. Devnet cannot assure that any auction-based Ads will be delivered and therefore make-goods do not apply to auction-based Ads.
Payment.Advertiser will pay all charges incurred in connection with Services, using a payment method approved by Devnet for that Advertiser (as modified from time to time), within a commercially reasonable time period specified by Devnet in the Account. Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes.

Advertiser will pay (i) all taxes and other government charges and (ii) reasonable expenses together with legal and other professional fees Devnet incurs in collecting late payments that are not disputed in good faith. Any portion of a charge not disputed in good faith must be paid in full. Advertiser may not offset any payment due under these Terms against any other payment to be made under these Terms. Devnet may, in its sole discretion, extend, revise or revoke credit at any time. Devnet is not obligated to deliver any Ads in excess of any credit limit.

If Devnet delivers Ads but does not deliver those Ads to the Advertiser’s selected platforms or websites (“Targets”) then Advertiser’s sole remedy for Devnet’s failure to deliver those Ads to the selected Targets is to make a claim for advertising credits within the Claim Period, after which Devnet will issue the credits following claim validation which must be used by the Use-By Date. Advertiser understands that third parties may generate impressions or clicks on Advertiser’s Ads for prohibited or improper purposes and that such conduct is not in Devnet’s control. To the fullest extent permitted by law, (a) Advertiser waives all claims relating to any charges unless a claim is made within the Claim Period and (b) the issuance of advertising credits (if any) is at Devnet’s reasonable discretion and if issued, must be used by the Use-By Date.

9.1 Advertiser expressly acknowledges and agrees that any account, credit card and related billing and payment information which Advertiser provides to Devnet may be shared by Devnet with companies who work on Devnet's behalf solely for the purpose of performing credit checks, effecting payment to Devnet, collecting debts owed to Devnet and/or servicing Advertiser's account.

9.2 Charges. Advertiser accounts that are inactive for more than 12 months will incur an account charge of the lesser of $10 per month or the account balance until such time as the account is active. Devnet may close accounts with a zero balance at Devnet's discretion.

Disclaimers.THE SERVICES PROVIDED UNDER THESE TERMS ARE PROVIDED AS-IS WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, OR ARISING FROM THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
Limitation of Liability.

11.1 SUBJECT TO SECTION 11.3, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL DEVNET BE LIABLE TO ADVERTISER FOR: (I) ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING ANY CLAIMS FOR LOST PROFITS, BUSINESS INTERRUPTION, LOST INFORMATION OR OTHER ARISING IN CONNECTION WITH SERVICES OR THESE TERMS; OR (II) LOSS OR DAMAGE TO PROFITS, CONTRACTS, BUSINESS, ANTICIPATED SAVINGS OR OPPORTUNITIES.

11.2 SUBJECT TO SECTION 11.3, DEVNET’S ENTIRE LIABILITY RELATING TO THESE TERMS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT NOT EXCEEDING THE FEES RECEIVED BY DEVNET FROM ADVERTISER DURING THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES

11.3 Nothing in this Section 11 will exclude or limit Devnet’s liability for anything which cannot be excluded or limited by law.

Indemnification.Advertiser shall defend, indemnify and hold Devnet harmless from and against any and all losses, fines, damages, liabilities, costs and expenses (including reasonable attorney’s fees) that Devnet incurs as a result of any demand, claim, suit, action, proceeding or threat (collectively, “Claims”) against Devnet arising from or related to Ads, Use or any breach of these Terms by Advertiser.
Changes to Terms; Termination.Devnet may make non-material changes to these Terms at any time without notice, but Devnet will provide advance notice of any material changes to these Terms. The modified Terms will be posted in the Account. The changes to the Terms will not apply retroactively and will become effective 7 days after posting. However, changes made for legal reasons will be effective immediately upon notice.

Either party may terminate these Terms at any time immediately upon notice to the other party, but (a) campaigns not cancelled under Section 5 and new campaigns may be run and reserved and (b) continued Use is, in each case subject to Devnet’s terms and conditions then in effect. Devnet may suspend Advertiser’s ability to participate in Services at any time, for example, in the event of payment issues, suspected or actual violations of the Policies or these Terms or for legal reasons. In all cases, the running of any Advertiser campaigns after termination is in Devnet’s sole discretion.

Intellectual Property.

Other than as set out expressly in the Terms, neither party will acquire any right, title or interest in any intellectual property rights belonging to the other party or to the other party's licensors. These Terms do not transfer from Devnet to Advertiser any Devnet or third party intellectual property, and all right, title and interest in and to such property will remain (as between the parties) solely with Devnet. Trademarks, service marks, graphics and logos used in connection with the Services may be the trademarks of other third parties. Use of the Services does not grant Advertiser any right or license to reproduce or otherwise use any Devnet or third-party trademarks.

If Devnet provides Advertiser with software in connection with the Services, Devnet grants Advertiser a non-exclusive, non-sublicensable license for use of such software. This license is for the sole purpose of enabling Advertiser to use and enjoy the benefit of the Services, in the manner permitted by the Terms. Advertiser may not copy, modify, distribute, sell, or lease any part of the Services or included software, or reverse engineer or attempt to extract the source code of that software. Advertiser will not remove, obscure, or alter Devnet’s copyright notice or other proprietary rights notices affixed to or contained within any of Devnet services, software, or documentation.

Miscellaneous.

15.1 Governing Law and Venue. These Terms shall be governed and construed in accordance with the laws of the State of New York, without reference to or application of its conflicts of law principles. Any controversy or claim arising out of relating to these Terms must be exclusively brought in the federal or state courts located in New York, New York.

15.2 Entire Agreement. These Terms including all policies attached hereto are intended as the complete, final and exclusive statement of the terms of the agreement between the Parties and supersedes all prior understandings, writings, proposals, representations or communications, oral or written, relating to the subject matter hereof.

15.3 Publicity. Advertiser may not make any public statement regarding the relationship contemplated by these Terms (except when required by law).

15.4 Notices. All notices of termination or breach must be in writing and addressed to the other party’s legal department (or if it is not known if the other party has a legal department, then to the other party's primary contact or other address on file). All other notices to Advertiser will be in writing and sent to an email address associated with Advertiser’s Account. All other notices to Devnet will be in writing and addressed to Advertiser’s primary contact at Devnet or other method made available by Devnet. Notice will be treated as given on receipt, as evidenced by written or electronic means. These notice requirements do not apply to legal service of process, which is instead governed by applicable law.

15.5 Amendments. Except for modifications to these Terms by Devnet under Section 13, any amendment must be agreed to by both Parties and must expressly state that it is amending these Terms. Failure of either party to enforce compliance with any provision of these Terms shall not constitute a waiver of such provision unless accompanied by a clear written statement that such provision is waived. A waiver of any default hereunder or of any of the terms and conditions of these Terms shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. Except as expressly provided herein to the contrary, the exercise of any right or remedy provided in these Terms shall be without prejudice to the right to exercise any other right or remedy provided by law or equity.

15.6 Assignment. Advertiser may not assign these Terms, in whole or in part, without the prior written consent of Devnet. Devnet may assign these Terms in whole or in part at any time.

15.7 Relationship of the Parties. The Parties shall at all times during the term of these Terms act as, and shall represent themselves to be, independent contractors, and not an agent, partner, joint venturer, or employee of the other party. Neither party shall have the right to enter into any contracts or binding commitments in the name of the other party or on such other party’s behalf.

15.8 Survival. Sections 1.1 (last sentence), 6, and 9 to 15 will survive termination of these Terms.

15.9 Force Majeure. Except for payment obligations, neither party shall be responsible for any delay or failure in performance of any part of these Terms to the extent that such delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, internet accessibility, utilities outage, inability to obtain products from a third party supplier, civil or military authority, act of God, act or omission of carriers or other similar causes beyond its control (collectively, a “Force Majeure Event”). The performance of the party suffering the Force Majeure Event shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such Force Majeure Event.