Exchange Services Terms

Our exchange partners require us to impose these additional terms covering your use of Exchange Services. Please review the Exchange Services Terms below, which are hereby incorporated into and form part of the Agreement. If you do not accept them, you must opt out of Exchange Services; failure to opt out is deemed acceptance.

1. Ad Tags. Publisher will not modify any advertisement tags provided by Exchange Partners (“Ad Tags”). Publisher will make commercially reasonable efforts to place Ad Tags on its application(s) in accordance with reasonable trafficking instructions provided by Tapjoy. Publisher understands that any modification by Publisher to the Ad Tags, or Publisher’s failure to comply with such trafficking instructions, may result in errors and discrepancies for which neither Tapjoy nor the Exchange Partner is responsible. Publisher will disable or remove Ad Tags from its Application(s) within two (2) business days of Tapjoy’s request.
2. Marks. Publisher hereby grants to Tapjoy a worldwide, non-exclusive, non-transferable (except through permitted assignment) fully paid up, royalty-free license, with express right of sublicense to each Exchange Partner, to use, reproduce and display Publisher’s names, logos, service marks, trademarks and related brand features (“Marks”) for use within each Exchange Partner’s platform in connection with Publisher’s participation in the Exchange Service. All such use of Publisher’s Marks will be in compliance with any written usage guidelines provided to Tapjoy or the applicable Exchange Partner by Publisher. All goodwill in the Marks inures to the benefit of Publisher. Each of Tapjoy and the applicable Exchange Partner will promptly modify or cease its use of Marks as directed by Publisher in writing. Tapjoy’s licensed rights, and the applicable Exchange Partner’s sublicensed rights, in and to Publisher’s Marks are limited solely to those rights granted herein.
3. No Children’s Applications. Publisher represents, warrants, and covenants that (i) its Application(s) are not and shall not during the Term be directed to users under 13 years of age, or otherwise applicable local minimum age if greater; (ii) Publisher does not as of the date Publisher creates a publisher account, and will not during the Term, collect, use, or disclose personal information from any end user known to Publisher to be a child under 13, or otherwise applicable local minimum age if greater; and (iii) Publisher will notify Tapjoy and the applicable Exchange Partner in writing immediately if either (i) or (ii) becomes or is discovered to be inaccurate.
4. Indemnification. Publisher as applicable shall indemnify, defend Tapjoy, each Exchange Partner, and each of their agents, officers, directors and employees (collectively, “Indemnitees”) from and against any claims, suits or proceedings brought by a third party (“Claims”) against any Indemnitee to the extent arising from: (a) any Publisher Application that contains content prohibited by the Guidelines, as updated from time to time, (b) Publisher’s direct or indirect engagement in or authorization of any activity prohibited by Section 2.2 (Requirements and Restrictions), (c) a claim that a Publisher’s Marks, when used in accordance with the terms of this Agreement, infringe any patents, trademarks, service marks, trade names, design rights, copyrights, database rights, trade secrets, rights in know-how and other intellectual property rights, of whatever nature and wherever arising, whether registered or unregistered and including applications for the grant of any such rights (collectively, “Intellectual Property Rights”) of any third party, or (d) breach by the Publisher of any aspects of this Agreement.
5. Express Third-Party Beneficiary. Publisher agrees and acknowledges that each Exchange Partner is an express third-party beneficiary of this Agreement.
6. Indemnification Procedure. In the event of a Claim against any Indemnitee, the Indemnitee shall notify Publisher and shall seek indemnity directly from Publisher. Publisher will promptly notify Tapjoy of any request for indemnity received from an Exchange Partner or any Exchange Partner Indemnitee. Publisher’s indemnification obligations above are contingent on the indemnified party: (a) promptly notifying Publisher of any Claim (provided that the indemnified party’s failure to provide such prompt notice will not release Publisher from its indemnification obligations except to the extent Publisher is materially prejudiced thereby); (b) providing Publisher with any reasonable information and assistance needed to defend or settle the Claim (provided Publisher bears any out of pocket expenses incurred by the indemnified party in providing such assistance or information), and (c) allowing Publisher the right to have sole control of the investigation, defense and settlement of the Claim (provided that Publisher will not enter into any settlement of a Claim that: (i) imposes a monetary obligation on the indemnified party that is not covered by the indemnification, (ii) imposes a material, non-monetary obligation on the indemnified party, (iii) does not include an unconditional release of the indemnified party, or (iv) admits liability on the part of the indemnified party, without in each case obtaining the indemnified party’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed). The indemnified party shall have the option, at its expense, to participate in the defense or settlement of the Claim with counsel of its own choosing. Publisher shall pay the indemnified Exchange Partner any damages finally awarded against such Exchange Partner, settlements agreed to in accordance with this subpart (c), and reasonable costs and expenses (including reasonable attorneys’ fees) directly attributable to such Claim.