BUBBLEYE

BUBBLEYE KRAKEN by Bubbleye Ltd. | https://kraken.bubbleye.com | contact@bubbleye.com

Unit 2A, 17F, Glenealy Tower, N.1 Glenealy, Central, Hong Kong

BUBBLEYE KRAKEN
Terms of Service

10. Limited liability

11. Disclaimer

12. Miscellaneous

1. Definitions

“BUBBLEYE KRAKEN” is a software platform developed by Bubbleye Ltd. and used by the CLIENT to buy Deliverables from Network Properties. BUBBLEYE KRAKEN is a trademark of Bubbleye Ltd., a Hong Kong registered corporation.
“CLIENT” means the entity that uses the BUBBLEYE KRAKEN platform to buy Deliverables from Network Properties, which may refer to the ultimate owner of the Media Property being advertised, or to an agency appointed by the Media Property owner.
“Ad” means any advertisement placed by BUBBLEYE KRAKEN onto Network Properties on behalf of a CLIENT.
“Services” are those offered by BUBBLEYE KRAKEN for the CLIENT under the applicable IO.
“Advertising Materials” means artwork, copy, or active URLs for Ads.
“CPI Deliverables” means Deliverables sold on a cost per acquisition basis.
“Deliverable” or “Deliverables” means the advertising inventory delivered by Network Properties (e.g. impressions, clicks, or other desired actions).
“IO” means a mutually agreed insertion order that incorporates these Terms, under which Network Properties will deliver Ads for the benefit of CLIENT.
“Media Property” means the mobile app that ultimately receives the Deliverables from Network Properties.
“Network Properties” means the (independent) advertising platforms that are not owned, operated, or directly controlled by BUBBLEYE KRAKEN, on which BUBBLEYE KRAKEN has the right to place Ads on behalf of CLIENT.
“Policies” means advertising criteria or specifications, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with BUBBLEYE KRAKEN’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Network Properties on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.
“Representative” means, as to an entity and/or its affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
“Terms” means these Terms of Service
“Third Party” means an entity or person that is not a party to an IO.
“Agreement” means the IO and these Terms together. In the event there are discrepancies between the IO and the Terms, the IO shall prevail.

2. Insertion Orders

Upon submission by Customer, each IO shall be incorporated into and form a part of the Agreement. Subject to CLIENT’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable IO), BUBBLEYE KRAKEN grants CLIENT the right and license to access and use the Services during the applicable IO Term (as defined below) for the internal business purposes of CLIENT, only as provided herein.

3. Service Level

BUBBLEYE KRAKEN will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, BUBBLEYE KRAKEN reserves the right to suspend CLIENT’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event CLIENT is in breach of this Agreement, including failure to pay any amounts due to BUBBLEYE KRAKEN. Subject to the terms hereof, BUBBLEYE KRAKEN will use commercially reasonable efforts to provide support for the Services purchased by CLIENT, from Monday through Friday during BUBBLEYE KRAKEN’s normal business hours. CLIENT acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). BUBBLEYE KRAKEN is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. CLIENT is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. BUBBLEYE KRAKEN does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between CLIENT and a third party provider is solely between CLIENT and such third party provider and is governed by such third party’s terms and conditions.

4. Service Updates

The Services are subject to modification (including, without limitation, to provide new features, implement new protocols, maintain compatibility with emerging standards or comply with regulatory requirements) from time to time at BUBBLEYE KRAKEN’s sole discretion, provided that such modifications do not result in a material degradation of the Services. For clarity, from time to time, BUBBLEYE KRAKEN may provide upgrades, patches, enhancements, or fixes for the Services to its CLIENTs (“Updates”) without additional charge unless mutually agreed upon in writing by the parties, and such Updates will become part of the Services and subject to this Agreement; provided that BUBBLEYE KRAKEN shall have no obligation under this Agreement or otherwise to provide any such Updates.

5. Ownership

As between the parties, BUBBLEYE KRAKEN retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by BUBBLEYE KRAKEN for the purposes of this Agreement, including any copies and derivative works of the foregoing. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. CLIENT may from time to time provide suggestions, comments or other feedback to BUBBLEYE KRAKEN with respect to the Service (“Feedback”). Feedback, even if designated as confidential by CLIENT, shall not create any confidentiality obligation for BUBBLEYE KRAKEN notwithstanding anything else. CLIENT shall, and hereby does, grant to BUBBLEYE KRAKEN a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.

CLIENT shall not take any actions that may directly or indirectly result in itself or any affiliated parties reverse engineering, copying or duplicating BUBBLEYE KRAKEN's proprietary information, products or solutions.

CLIENT undertakes that it shall not engage in the development of a product or service that is similar in nature to BUBBLEYE KRAKEN's product for commercial purposes. Such restriction shall survive for two years after the termination of the commercial relationship between the parties. Notwithstanding the foregoing, CLIENT shall be able to develop solutions that are similar in nature and functionality to BUBBLEYE KRAKEN´s products or services as long as such solutions are meant for internal use only and BUBBLEYE KRAKEN is promptly made aware of such planned or ongoing developments in writing.

6. Fees

Paid Services. Certain BUBBLEYE KRAKEN Services may be subject to payments now or in the future (the “Paid Services”). Any payment terms presented to CLIENT in the process of using or signing up for a Paid Service are deemed part of this Agreement. Unless otherwise specified in the Insertion Order, the CLIENT’s entire spend on any of BUBBLEYE KRAKEN’s supported Network Properties is utilized as the base for calculating BUBBLEYE KRAKEN’s fees.
Billing. BUBBLEYE KRAKEN may require pre-payment or net-30 terms per the terms of the applicable IO. The CLIENT agrees to comply with any additional terms, conditions and privacy policies as defined in the IO.
Current Information Required. CLIENT must provide current, complete and accurate information for its billing account. CLIENT must promptly update all information to keep its billing account current, complete and accurate (such as a change in billing address), and CLIENT must promptly notify BUBBLEYE KRAKEN of any changes.
Change in Amount Authorized. BUBBLEYE KRAKEN reserves the right to change the amount it charges for the Services. If the amount to be charged to CLIENT’s Account varies from the amount CLIENT preauthorized (other than due to the imposition or change in the amount of sales taxes), BUBBLEYE KRAKEN shall apply the new charges starting from the upcoming contract renewal with at least 30 days advance notice, and CLIENT shall have the right to negotiate new terms and possibly suspend the contract renewal if an agreement on the new terms cannot be reached.
Reaffirmation of Authorization. CLIENT’s non-termination or continued use of a Paid Service reaffirms that BUBBLEYE KRAKEN is authorized to charge the Service fee for that Paid Service. If the IO includes any recurrent fees, such fees shall be automatically billed for the following billing period unless CLIENT requests Service termination with at least 7 days advance notice on the current period’s end date.
Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Paid Service must be used within the specified trial time. CLIENT must stop using a Paid Service before the end of the trial period in order to avoid being charged for that Paid Service.

7. Restrictions

Except as expressly set forth in this Agreement, CLIENT shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent that applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy or replicate the Service; (iv) rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service except toward its own Affiliates (defined as a person or entity that is directly controlled by CLIENT); (v) use the Service for the benefit of a third party; (vi) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vii) use the Service to build an application or product that is competitive with any BUBBLEYE KRAKEN product or service; (viii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (ix) bypass any measures BUBBLEYE KRAKEN may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). CLIENT is responsible for all of CLIENT’s activity in connection with the Service, including but not limited to uploading CLIENT Data (as defined below) onto the Service. BUBBLEYE KRAKEN shall provide the Service, and CLIENT shall use the Service (i) in compliance with all applicable local and foreign laws, treaties and regulations in connection with CLIENT’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) in a manner that does not violate any third party intellectual property, contractual or other proprietary rights. Notwithstanding anything to the contrary, if BUBBLEYE KRAKEN reasonably believes that CLIENT is responsible for violating a third party’s copyright on the Services, BUBBLEYE KRAKEN may delete or disable such CLIENT content.

8. Confidentiality

An independent NDA may be signed by the parties to further detail confidential information obligations. Notwithstanding the foregoing, each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).

The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.

For purposes of this Agreement, “CLIENT Data” shall mean any data, information or other material provided, uploaded, or submitted by CLIENT to the Service in the course of using the Service. CLIENT shall retain all right, title and interest in and to the CLIENT Data, including all intellectual property rights therein. CLIENT, not BUBBLEYE KRAKEN, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all CLIENT Data. BUBBLEYE KRAKEN shall use commercially reasonable efforts to maintain the security and integrity of the Service and the CLIENT Data. BUBBLEYE KRAKEN is not responsible to CLIENT for unauthorized access to CLIENT Data or the unauthorized use of the Service unless such access is due to BUBBLEYE KRAKEN’s gross negligence or willful misconduct. CLIENT is responsible for the use of the Service by any person to whom CLIENT has given access to the Service, even if CLIENT did not authorize such use. CLIENT agrees and acknowledges that CLIENT Data may be irretrievably deleted if CLIENT’s account is ninety (90) days or more delinquent. For clarity, BUBBLEYE KRAKEN has no obligation to delete any CLIENT Data unless CLIENT requests such deletion, and if CLIENT requests deletion, then BUBBLEYE KRAKEN will use commercially reasonable efforts to destroy CLIENT Data then in its control. Notwithstanding anything to the contrary, CLIENT acknowledges and agrees that BUBBLEYE KRAKEN may (i) internally use and modify (but not disclose) CLIENT Data for the purposes of (A) providing the Services and any support or consultation services to CLIENT and (B) generating Aggregated De-Identified Data (as defined below), and (ii) freely use and make available Aggregated De-Identified Data for BUBBLEYE KRAKEN’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing BUBBLEYE KRAKEN’s products and services). “Aggregated De-Identified Data” means data submitted to, collected by, or generated by BUBBLEYE KRAKEN in connection with CLIENT’s use of the Service, but only in aggregate, de-identified form which is not linked specifically to CLIENT or any individual. Notwithstanding anything else, BUBBLEYE KRAKEN is permitted to disclose (including through display of CLIENT’s logo) that CLIENT is one of its customers (including in its publicity and marketing materials).

9. Termination

This Agreement shall commence upon the effective date set forth in the first IO, and, unless earlier terminated in accordance herewith, shall last until the expiration of all IO Terms. For each IO, the “IO Term” shall begin as of the effective date set forth on such IO, and unless earlier terminated as set forth herein, it shall continue indefinitely while the Services are in use.

In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party. The breaching party shall bear legal responsibility for the breach and take any reasonable efforts to materially cure such breach within fifteen (15) days of receipt of such notice. Without limiting the foregoing, BUBBLEYE KRAKEN may suspend or limit CLIENT’s access to or use of the Service if (i) CLIENT’s account is past due, or (ii) CLIENT’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with BUBBLEYE KRAKEN’s ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) BUBBLEYE KRAKEN shall use reasonable good faith efforts to work with CLIENT to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, BUBBLEYE KRAKEN shall use commercially reasonable efforts to provide notice to CLIENT describing the nature of the damage or degradation; and (c) BUBBLEYE KRAKEN shall reinstate CLIENT’s use of or access to the Service, as applicable, if CLIENT remediates the issue within fifteen (15) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

10. Limited liability

Independence from Network Properties. As a platform aimed to help CLIENT perform certain actions on several Network Properties, BUBBLEYE KRAKEN is not accountable for any undesired actions taken by any Network Property. This includes, without limitation:

delays or errors in enacting CLIENT’s requests onto each Network Property, despite BUBBLEYE KRAKEN’s best effort to avoid such situations and promptly inform CLIENT through BUBBLEYE KRAKEN’s web platform;
fees charged by Network Properties exceeding the CLIENT’s desired budget or volume restrictions, which the Network Property failed to enforce;
occasional unrequested modifications of the advertising settings performed by a Network Property at their sole discretion;
fraudulent or unlawful behavior by any Network Property, despite BUBBLEYE KRAKEN’s best effort to identify such behaviors and promptly inform CLIENT of the same.

Third party claims. Each party will indemnify and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors and representatives from all liabilities, claims, and expenses from a Third Party claim arising from or relating to a violation of this Agreement, or the infringement of any intellectual property or other right of any third party.
Limited past liability. In no event shall BUBBLEYE KRAKEN, nor its directors, employees, agents, partners, suppliers or content providers, be liable (i) for any lost profits, data loss, cost of procurement of substitute goods or services, or special, indirect, incidental, punitive, or consequential damages of any kind whatsoever, or (ii) for any direct damages in excess of (in the aggregate) the fees paid (or payable) by CLIENT to BUBBLEYE KRAKEN hereunder in the twelve (12) months prior to the event giving rise to a claim hereunder.

11. Disclaimer

Except as expressly set forth herein, the Service is provided “as is” and “as available” and is without warranty of any kind, express or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance, usage of trade, or course of dealing, all of which are expressly disclaimed.

12. Miscellaneous

This Agreement represents the entire agreement between CLIENT and BUBBLEYE KRAKEN with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between CLIENT and BUBBLEYE KRAKEN with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if sent by email to CLIENT’s email address indicated in the IO (when BUBBLEYE KRAKEN is providing notice) or legal@bubbleye.com (when CLIENT is providing notice). Notices to BUBBLEYE KRAKEN must be addressed to “Attn: Legal Notice”. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties (including, without limitation, CLIENT’s submission of an additional IO via the Services). Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business or assets relating to this Agreement, and (ii) BUBBLEYE KRAKEN may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.