Terms of Service

Updated March 8, 2016

Advertisers:
Please refer to the Content Guidelines (incorporated herein by reference) for information regarding acceptable use of content.

Publishers:
Please refer to the Publisher Guidelines (incorporated herein by reference) for information regarding acceptable implementation of audio ads.

PLEASE READ THIS USER AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY Mixberry Media Inc. (“COMPANY” or “Mixberry”). BY CLICKING THE “Save & Continue” BUTTON, YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE “CANCEL” BUTTON AND YOU WILL NOT HAVE ANY RIGHT TO USE THE SERVICES OFFERED BY COMPANY. COMPANY’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY COMPANY, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

The Web pages available at www.mixberrymedia.com, and all linked pages unless indicated otherwise (“Site”), are owned and operated by Company, and are accessed by you (“User”) under the following terms and conditions:

Access to the Services

Subject to the terms and conditions of this Agreement, Company may offer to provide certain services that relate to facilitating the purchase and sale of audio and audio/visual advertisements by bringing together advertisers and publishers, as described more fully on the Site, and which are selected by User through the process provided on the Site (“Services”). Company may change, suspend or discontinue the Services (or User’s access thereto) at any time, including the availability of any feature, advertisement, publisher or Content, without notice or liability. Company reserves the right, at its discretion, to refuse to allow access to the Services to any User at any time. Company also reserves the right, at its discretion, to modify this Agreement at any time by posting a notice on the Site, or by sending User a notice via email or postal mail. Use of the Services by User following such notification constitutes User’s acceptance of the modified terms and conditions. User certifies to Company that if User is an individual (i.e. not a corporation) User is at least 18 years of age. User also certifies that it is legally permitted to use the Services and access the Site, and takes full responsibility for the selection and use of the Services. This Agreement is void where prohibited by law, and the right to access the Site is revoked in such jurisdictions.

Restrictions

User (whether a publisher, advertiser, agency or otherwise) warrants, represents and agrees that it will not contribute, submit or make available through the Services, or use the Services in connection with, any Content that is infringing, libelous, defamatory, obscene, pornographic, abusive, offensive or otherwise violates any law or right of any third party. If User is a publisher, User shall not, and shall not authorize or encourage any third party to generate fraudulent ad requests, impressions or requests for additional information on any advertisement, including but not limited to, through repeated manual requests, 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. Company reserves the right to remove any Content from the Site at any time, or to terminate User’s right to use the Services or access the Site, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Company is concerned that User may have breached the terms of this paragraph), or for no reason at all, subject to the provisions of the paragraph titled (“Termination”). User is responsible for all of its activity in connection with the Services and accessing the Site. User 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 Company user. User shall not use any part of the Site 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. User will not run Maillist, Listserv, any form of auto-responder, or “spam” on the Site or Services, or any processes that run or are activated while the User is not logged in.

Implementation

Users who are publishers may list assets including but not limited to web sites, mobile sites, applications, and device platforms (“Publisher Properties”) and make them available for advertisement. Users who are publishers hereby grant Company the right to access, index, store and cache requests made from User’s Publisher Property to the Service, including by automated means. Users who are advertisers may produce content (“Advertisements”) for delivery on a publisher’s Publisher Property. User agrees to comply with the technical specifications provided by Company to enable proper delivery of the Advertisements in connection with the Services.

Communications Solely with Company

User agrees to direct to Company and not to any advertiser or publisher, as the case may be, all communications regarding any matter arising out of User’s use of the Services.

  • All materials played, displayed or performed on or accessible through the Site or Services (including, but not limited to text, graphics, articles, photographs, images, illustrations, audio messages, audio clips and video clips, also known as the “Content”) are protected by copyright. The term “Content” as used herein specifically includes any advertising or other content made available or submitted by any advertiser and any website or other content published by or associated with any publisher. User shall abide by all copyright notices, information, and restrictions contained in any Content accessed in connection with the Services.
  • User acknowledges and agrees that if User uses any of the Services to contribute or make available Content, Company is hereby granted a non-exclusive, worldwide, royalty-free, transferable right to fully exploit such Content (including all related intellectual property rights) and to allow others to do so in connection with the Services and the Site. To the extent allowed by law, the foregoing includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “Moral Rights.” To the extent User retains any such Moral Rights under applicable law, User hereby ratifies and consents to any action that may be taken with respect to such moral rights by Company and agrees not to assert any Moral Rights with respect thereto.

Disclaimers

  • User acknowledges and agrees that Company has no special relationship with or fiduciary duty to User and that Company has no control over, and no duty to take any action regarding: which users gains access to the Site or Services; what Content User accesses or receives via the Site or Services; what Content other Users may make available, publish or promote in connection with the Services; what effects any Content may have on User or its users or customers; how User or its users or customers may interpret, view or use the Content; what actions User or its users or customers may take as a result of having been exposed to the Content, or whether Content is being played or displayed properly in connection with the Services.
  • Further, (i) if User is a publisher, User specifically acknowledges and agrees that Company has no control over (and is merely a passive conduit with respect to) any Content that may be submitted or published by any advertiser, and that User is solely responsible (and assumes all liability and risk) for determining whether or not such Content is appropriate or acceptable to User, and (ii) if User is an advertiser, User specifically acknowledges and agrees that Company has no control over any Content that may be available or published on any publisher website, Application or otherwise, and that User is solely responsible (and assumes all liability and risk) for determining whether or not such Content is appropriate or acceptable to User.
  • User releases Company from all liability in any way relating to User’s acquisition (or failure to acquire), provision, use or other activity with respect to Content in connection with the Site or Services. The Site may contain, or direct User to sites containing, information that some people may find offensive or inappropriate. Company makes no representations concerning any Content contained in or accessed through the Site or Services, and Company will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Site or Services. Company makes no guarantee regarding the level of ad delivery or follow up on any Advertisement, or the timing of delivery of such impressions and/or follow ups.
  • THE SERVICES, CONTENT AND SITE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE RESULTS OF ANY ADVERTISING CAMPAIGN, AND USER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO USER.

Registration and Security

As a condition to using Services, User is required to register with Company and select a password and enter User’s email address (“Company User ID”). User shall provide Company with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of User’s account. User may not (i) select or use as a Company User ID a name of another person with the intent to impersonate that person; (ii) use as a Company User ID a name subject to any rights of a person other than User without appropriate authorization. Company reserves the right to refuse registration of, or cancel a Company User ID in its discretion. User shall be responsible for maintaining the confidentiality of User’s Company password.

Equipment and Ancillary Services

User shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Site or otherwise use the Services, including, without limitation, hardware devices, software, and other Internet, wireless, broadband, phone or other communication device connection services. User shall be responsible for ensuring that such equipment or ancillary services are compatible with the Site and any Services and User shall be responsible for all charges incurred in connection with all such equipment and ancillary services, including any fees charged for airtime usage and/or sending and receiving messages or related notifications.

Indemnity

User will indemnify and hold Company, its parents, subsidiaries, affiliates, officers and employees, harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of User’s access to the Site, use of the Services, the violation of this Agreement by User, or the infringement by User, or any third party using the User’s account, of any intellectual property or other right of any person or entity.

Limitation of Liability

IN NO EVENT SHALL COMPANY BE LIABLE WITH RESPECT TO THE SITE OR THE SERVICES (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE NET AMOUNT PAID BY COMPANY TO USER DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE RELEVANT CLAIM; OR (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO USER.

Fees and Payment

Some of the Services require payment of fees. Company reserves the right to change its prices and to institute new charges at any time, upon prior notice to User or by adjusting the automated price calculation on the Site, price change notices may be sent by email or posted on the Site.

Advertisers
If User is an advertiser, User shall pre-pay any applicable fees, as described on the Site, in connection with such Services selected by User. User shall also specify a payment method and authorize Company to charge User for advertising campaigns or any other services purchased by User. Payment methods include credit card and PayPal. If User’s account is not pre-paid and User has specified a credit card payment method, User is automatically charged when the amount due exceeds US$100 or any other pre-arranged amount. Other payment methods may be arranged with Company upon request. Except in countries where Company has a legal entity, Company is not responsible for the billing of or payment of any taxes or VAT that may be imposed on User by any government entity. User agrees that if any such payment is due to any government entity, it is solely User’s responsibility and Company is not liable nor responsible to collect or make such payments. If User is billed directly for services from an office where Company has a legal entity, Company will add the appropriate VAT to the invoice amount and Company will remit such amount to the appropriate authorities.

Company may refuse, reject, cancel, or remove any ad, Information, or space reservation at its discretion at any time. Ads may be subject to inventory availability, and the final decision as to ad relevancy is at Company’s discretion. Company does not guarantee that ads will be placed in, or available through, any part of the distribution network. Ads with clickable companion banners may be run through certain premium networks that provide an action link or button instead of displaying the banner.

Daily budgets are used to limit campaign spending. User defines the daily budget at the campaign level which applies to a single campaign and not all campaigns in User’s account. Note that under certain conditions, daily budgets may be exceeded by up to 3%.

Publishers
If User is a publisher, User shall receive a percentage of the Net Revenue of Advertisements associated with User’s use of the Services as solely determined by Company. “Net Revenue” shall mean revenues actually received by Company from the sale, use or other disposition of Advertisements played on Publisher’s Application less a 10% network operations fee, any sales, use and excise taxes, or VAT that may be imposed now or in the future, less any agency commissions, carrier and/or partner fees, and less any allowances actually made or taken for returns, cash discounts or promotional allowances. All amounts are determined and paid in US Dollars.

If User is subject to the payment of VAT , User is responsible for self-assessing the amount and making the payment of VAT to their appropriate authorities.

If the amount payable to User is less than US$100 (One Hundred Dollars, US), the amount will accrue in the User’s account until such time as the amount payable is greater than US$100. Company will pay User the determined amount within sixty (60) days after the end of each calendar month to User’s specified PayPal account. Other payment methods including Direct Deposit to US bank accounts or Wire Transfer may be arranged with Company. Company will deduct Company’s bank or service fees associated with making such payments; current fees are up to US$40 for wire transfers and US$5 for direct deposit into US bank accounts. Company is not responsible for any third party payment, banking transaction fees or PayPal fees that may be deducted from User’s proceeds.

User agrees that any payments that may become due are specifically conditioned upon Company’s receipt of full payment from the applicable advertiser. If Company does not receive the applicable payment in full from any such advertiser, Company shall have no liability or responsibility to User (and User hereby releases Company) with respect thereto. If User disputes any payment made in connection with the Services, User must notify Company in writing within thirty (30) days of any such payment. Failure to so notify Company shall result in the waiver by User of any claims related to such disputed payment. Payment shall be calculated solely based on the electronic records maintained by the Company’s advertising platform. No other measurements or statistics of any kind shall be accepted by Company or have any effect under this Agreement.

Company shall not be liable for any payment based on (i) any fraudulent ad requests or impressions generated by any person, robot, automated program or similar device or for fraudulent ad requests or impressions similarly generated on any advertisements, as reasonably determined by Company; (ii) ad requests or impressions commingled with a significant number of fraudulent ad requests or impressions or fraudulent follow ups described in (i) above; or (iii) any breach of this Agreement by User. To ensure proper payment, Publisher is solely responsible for providing and maintaining accurate contact and payment information associated with Publisher’s account. Publisher agrees to pay all applicable taxes or charges imposed by any government entity in connection with Publisher’s use of the Services.

Other Policies

  • In the course of using the Site or Services, User may be asked to provide certain personally identifiable information to Company (such information referred to hereinafter as “User Information”). Company’s information collection and use policies with respect to such User Information are set forth in the Site’s Privacy Policy which is incorporated herein by reference for all purposes. User acknowledges and agrees that User is solely responsible for the accuracy and content of its User Information. Company cannot and does not guarantee the security of any of the User Information that a User transmits online.
  • Users who believe that material or Content residing on or accessible through the Site or Services infringes a copyright should review the Site’s Copyright Dispute Policy.

Your Privacy Policy

If User is a publisher, User will have and abide by a privacy policy on User’s Publisher Properties. If User collects, processes, or discloses location-based information in connection with the Services, User must follow a legal and appropriate method for obtaining explicit consent from User’s end users and make appropriate disclosures in User’s privacy policy.

Termination

Either party may terminate the Services at any time by notifying the other party by any means. Company may also terminate or suspend any and all Services and access to the Site immediately, without prior notice or liability, if User breaches any of the terms or conditions of this Agreement. Any fees paid hereunder are non-refundable and non-cancelable. Upon termination of the User’s account, User’s right to use the Services will immediately cease and User will remove all Company code from User’s Publisher Properties. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.

Representations and Warranties

If User is a publisher, User represents and warrants to Company that (i) User is the owner of each Publisher Property User designates in connection with the use of Services or that User is legally authorized to act on behalf of the owner of such Publisher Property for the purposes of this Agreement, and (ii) User has all necessary right, power and authority to enter into this Agreement and to perform the acts required of User hereunder. User further represents and warrants to Company that each of User’s Publisher Properties and any material played and/or displayed therein: (a) comply with all applicable laws, statutes, ordinances and regulations; (b) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (c) are not hate-related in content. If User is an advertiser, User represents and warrants to Company that (i) User is the owner of each Advertisement User designates in connection with the use of Services or that User is legally authorized to act on behalf of the owner of such Advertisement for the purposes of this Agreement, and (ii) User has all necessary right, power and authority to enter into this Agreement and to perform the acts required of User hereunder. User further represents and warrants to Company that each of User’s Advertisements and any material played and/or displayed therein: (a) comply with all applicable laws, statutes, ordinances and regulations; (b) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; (c) are not hate-related in content and (d) are free from viruses and any other contaminants of any nature whatsoever.

Miscellaneous

The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company’s reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by User except with Company’s prior written consent. This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to the conflict of laws provisions thereof. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event of a conflict between this Agreement and any document incorporated herein by reference, this Agreement shall govern. No agency, partnership, joint venture, or employment is created as a result of this Agreement and User does not have any authority of any kind to bind Company in any respect whatsoever.

Content Guidelines

Advertiser Content Guidelines

We at Mixberry are excited to work with you on all of your web and mobile advertising needs. To help ensure the best possible experience for you and the Mixberry community, please familiarize yourself with our content guidelines below.

These guidelines are a general statement of Mixberry’s advertising standards and are not intended to be comprehensive. Third-party advertising is subject to internal review by Mixberry. Adherence to the guidelines outlined below does not guarantee Mixberry’s acceptance of advertising content, and is not necessarily sufficient to meet the standards of all applicable laws. Each advertiser should consult with legal counsel before seeking to place any advertising to ensure it adheres to all applicable laws.

For mobile ads, if redirecting is required, ads must redirect to sites that are formatted for display on a mobile screen.

Restricted Ad Content

  • Alcohol Advertising
    Must be targeted to ages 21, and cannot promote intoxication.
  • Dating Sites
    Must be targeted to ages 18+ and must be single/divorced.
  • Downloads
    Users must be informed as to exactly what is being offered for download.
    Downloads cannot be automatic or contain hidden or harmful functionality as bundled components of a user approved download (ie. adware/spyware/ActiveX spawning controls).
    If an advertiser would like to link to a file that contains an automatic download, there must be a landing page that has a clear call to action prior to the download of such files.
  • The following content must be approved prior to acceptance:
    • Bathing wear and undergarment advertising.
    • Pharmaceutical advertising promoting adult-oriented drugs.
    • Religious content or advertising.
    • Political content or advertising.

Unacceptable Ad Content

  • Sexual Content
    Sexually suggestive words, nudity and sexually explicit or suggestive images.
  • Prostitution (direct solicitation or implied).
  • Violence
    Content promoting violence, including harming or killing humans or animals. Content promoting violent or sexual assault.
  • Anti or Hateful Speech
    Content promoting violence or advocating against a particular group is not permitted. This includes, but is not limited to, groups identified by their age, color, national origin, race, religion, sex, sexual orientation or handicap.
  • Profanity
    Advertising that displays defamatory, profane, hateful, or libelous material
    Advertising that contains offensive, profane, vulgar, obscene or inappropriate language
  • Drugs
    Content promoting illegal drugs and drug paraphernalia.
    Recreational drugs or drug paraphernalia (including products/services designed to bypass drug tests)
  • Gambling
    Content promoting gambling or betting of any kind. (This only applies to the US and other countries in which such content is illegal.)
  • Tobacco and Cigarettes
    Content promoting tobacco or tobacco-related products.
  • Firearms
    Content promoting firearms, ammunition or fireworks.
  • Illegal activities or offers
    Advertising that promotes illegal activities or offers.
  • Advertising directed to children 13 years of age or younger
  • Greencard Applications
  • Visually Distracting Graphics
    Banners that include flashing, shaking, rolling, pulsing.
  • Ads that link to landing pages which do not render correctly.
    Ads which link to landing pages that contain content which does not render correctly will not be approved. Examples of unsupported content includes, but is not limited to, Flash – videos, animations, audio (exceptions to this are mobile-optimized YouTube videos and QuickTime versions that are supported by smartphones).
  • Misleading Ad Text, Content and/or URL references.
    Ads that contain misleading text, Content or URL references will not be approved.
  • Subscription or Quiz-Based Ads
    Any ads which require a user to pay any form of subscription fee are unacceptable unless they adhere to all of the guidelines included below:

    • On a page where the user is asked to enter a phone number, the price must be clearly visible before or above the field for the phone number.
    • The price and terms and conditions must be easily distinguishable (meaning the contrast is high) from the background or any image where the pricing resides. The price and terms and conditions must be available for viewing on every page, but the price may be below the fold.
    • The terms and conditions must start above the fold, but may continue below the fold.
    • The user must have the option to accept or reject the charge by short code, or any other means, after the user has entered the phone number.

Premium Numbers
Toll or fee-based telephone numbers that require additional payment by the caller are not allowed.

Unverifiable Content
Ads that are submitted to Mixberry and cannot be verified will require explanation and possible translation from the advertiser.

Referenced or redirected to URLs
The referenced or redirected to URLs by the ad must meet the requirements included below:

  • The URL’s top-level domain must match the landing page URL of the promoted website.
  • Paths may be included and are not required to match the landing page URL.
  • If the URL is too long, a shortened version may be used.
  • The scheme should not be included.
  • The domain extension (.com, .net, etc.) must be included.
  • If the top-level domain is used to handle multiple independent websites (like blogspot, for instance), then an accurate subdomain or path must be included.

Publisher Guidelines

If User is a Publisher, the web site and/or mobile applications must adhere to certain implementation guidelines including:

  • Web Site or Application must be of the nature where the user is engaged listening to audio and/or video.
  • Audio ads should only be requested in areas of the web site or application, when the user is expecting audio output.
  • Ad request frequency should be reasonable so that the user does not receive an excessive number of ads.
  • Audio ads may not be implemented on initial page load where the user is not expecting audio output.
  • No advertiser ads can appear on any user generated pages and personal home pages.
  • Mixberry may at any time update its SDK’s or ad request specifications. Mixberry will provide Publishers at least 90 days notice if such updates require mandatory updates to the Publisher’s Site or App. If Publisher does not comply with the requested updates, Mixberry has the right to pause or terminate Publisher’s account and shall not be liable to Publisher in any way due to such action.

Publisher Required Notifications to Company:
Notifications to company must be provided by email to: publishers@mixberrymedia.com

  • Publisher must provide Company with their client demographics including, but not limited to unique monthly users per country for the top 5 countries and any known client information such as age and gender. Such information must be updated and provided to Company at least once per year.
  • Publisher must provide Company at least 24 hours notice before launching Company ads for the first time in a production environment.
  • Publisher must provide Company with 5 days prior notice before launching new changes that may increase or decrease the number of monthly ad request volume by 50% or more over the prior month’s levels.
  • Publisher must provide Company with 90 days prior notice before terminating this agreement.
  • If Publisher is a network containing multiple Sites or Apps where it is not feasible to obtain a separate Key for each Site or App, Publisher must provide Mixberry a list of all Sites or Apps that are requesting Mixberry ads.