Thank you for visiting and using the website located at www.fyber.com (the “Service”), which is owned and provided by Fyber, GmbH (“Fyber”).  Your use and access of the Service is governed by and subject to the following agreements (collectively, the “Fyber Agreements”), applicable to you and your use of the Service: 

• These terms of use (“General Terms of Use”);
• The Fyber Privacy Policy, available here;
• If you are an advertiser (“Advertiser”), the Fyber Advertiser Terms and Conditions to which you are a party; and 
• If you are a developer (“Publisher”) of mobile applications or websites (“Publisher Properties”), the Fyber Publisher Terms and Conditions to which you are a party.

If you do not agree to any of the Fyber Agreements that are APPlicable to you, do not use the Service or any services offered by the Service. IN ALL EVENTS, BY ENTERING ACCESSING, BROWSING, SUBMITTING INFORMATION TO, OR OTHERWISE USING THIS WEBSITE, YOU AGREE TO COMPLY WITH AND BE BOUND BY THESE TERMS OF USE AND THE FYBER PRIVACY POLICY.

Description of The Network

Fyber offers an advertising technology Service (the “Services”) that connects Publishers and Advertisers via our online platform.  Fyber does not develop any particular Publisher Property.  Nor is Fyber an advertising agency and Fyber does not create any Ad.  Fyber is not responsible for the content, functionality or performance of any Ad or Publisher Property.  Rather, what Fyber does is offer a web-based technology Service that collects information about how Users use Publisher Properties within the Network (“User Characteristics”) and enables Advertisers to serve Ads to those Publisher Properties based on specific User Characteristics via the Service.  If you are a User, then you may encounter our Service when you download or visit a Publisher Property and one of our Advertisers requests that we serve Ads to that Publisher Property.

Member Accounts

If you are a Publisher or Advertiser, you are required to create a password-protected account (“Account”) in order to use certain features of the Service.  You are responsible for maintaining the strict confidentiality of your password, and you shall be responsible for any access to or use of your Account, including any fees, costs, or expenses incurred or accumulated as a result of such use, by you or any person or entity using your password, whether or not such access or use has been authorized by or on behalf of you, and whether or not such person or entity is your employee or agent.  You agree to (a) immediately notify Fyber of any unauthorized use of your password or Account or any other breach of security, and (b) ensure that you exit from your Account at the end of each session.  It is your sole responsibility to protect your password, control access to and use of your Account, and notify Fyber when you desire to cancel your Account.  Fyber will not be responsible or liable for, and you hereby waive any claim against Fyber in connection with, any loss or damage arising from your failure to comply with this provision.

Intellectual Property Ownership

Unless otherwise noted, all text, content, and documents made available via the Service, any names, logos, trademarks, service marks, brand identities, characters, trade names, graphics, designs, copyrights, trade dress, or other intellectual property appearing via the Service, and the organization, compilation, look and feel, illustrations, artwork, videos, music, software and other works via the Service (the “Content”) are owned by Fyber or used with permission or under license from a third party, such as a Publisher or Advertiser (hereinafter collectively referred to as the “Owner”) and are protected under copyright, trademark and other intellectual property and proprietary rights laws.  As between Fyber and you, all right, title and interest in and to the Content will at all times remain with Fyber and/or its Owners.  All brand names, product names, titles, slogans, logos, or service names and other marks used via the Service, are registered and/or common law trade names, trademarks or service marks of Fyber.

Limited Use; Restrictions on Use

You are only permitted to use the Content and/or any services and products via the Service for lawful purposes as provided in the Terms of Use and your applicable Fyber Agreement, depending upon whether you are an Advertiser or Publisher.  Any other use or misuse of any Content is strictly prohibited. Fyber grants you a non-exclusive, limited, personal, non-transferable, revocable, license to access and use the Content, without right to sublicense, under the following conditions: you shall not, without Fyber’ express written consent: (a) copy, retransmit, modify, disseminate, display, perform, reuse, re-post, broadcast, circulate, or otherwise distribute the Content, or modify or re-use all or part of the Content, (b) use any tradename, trademark, or brand name of Fyber in metatags, keywords and/or hidden text, (c) create derivative works from the Content or commercially exploit the Content, in whole or in part, in any way, and (d) use the Service, the Content, and/or any portion thereof, in any manner that may give a false or misleading impression, attribution or statement as to Fyber, the Owner, or any third party referenced therein. Fyber reserves all other rights.  You shall not alter, remove or obscure any copyright notice, digital watermarks, proprietary legends or any other notice included in the Content.  Except as expressly provided herein, nothing via the Service shall be construed as conferring any license under Fyber’ and/or its Owner’s intellectual property rights, whether by estoppel, implication or otherwise. Notwithstanding anything herein to the contrary, Fyber may revoke any of the foregoing rights and/or your access to the Service, or any part thereof, including the blocking of your IP Address, at any time without prior notice.

Third Party Mediation

From time to time, in our sole discretion, we may enter into certain additional agreements with third parties to provide additional services. In such case, we will execute a separate agreement with these parties a establishing specific license terms and restrictions for the use of our Services, trademarks, logos, designs, layouts, or the look and feel of our Services. ALL OTHER MEDIATION OR RESALE, RE-USE, OR SUBLICENSING OF OUR SERVICES BY ANY PARTY OR ENTITY OTHER THAN US IS STRICTLY PROHIBITED AND UNAUTHORIZED AND MAY VIOLATE CIVIL AND CRIMINAL LAW, INCLUDING THE COMPUTER FRAUD AND ABUSE ACT.  THIS INCLUDES WEB-SCRAPING OR ATTEMPTING TO MEDIATE OR MEDIATING OUR EXCHANGE AND OFFERS.   Our election to enter into any agreement does not, and shall not, constitute a waiver of this prohibition to any party except the third party with which we have executed such agreement.

No Archive

Even if this Service includes features and functionality that permit you to upload certain Content to our services or systems, including earning statements and records (“Submissions”) this Service is not and shall not function as an archive. Fyber shall have no liability to you or any other person for loss, damage, or destruction to your Submission. You shall be solely responsible for maintaining independent archival and backup copies of any Submission.

Disclaimers

Without limiting the foregoing, the Content and all other features via the Service are provided to you “AS IS” and “AS AVAILABLE” without warranty of any kind with respect to the Service and/or Content, either express or implied, including but not limited to, fitness for a particular purpose, title, or non-infringement.  Should Publisher Propertylicable law not permit the foregoing exclusion of express or implied warranties, then Fyber hereby grants the minimum express or implied warranty required by such Publisher Propertylicable law. No advice or information, whether oral or written, obtained by you from Fyber, its employees, agents, suppliers or any other persons shall create any warranty, representation or guarantee not expressly stated in this section. Additionally, Fyber does not make any warranties that the Service will be uninterrupted, secure or error free or that your use of the Service will meet your expectations, or that the Service, Content, or any portion thereof, is correct, accurate, or reliable. Fyber reserves the right to change any part of the Service at anytime without notice.

Limitation of Liability

Your use of this website is at your own risk. Neither Fyber, its affiliates, nor any of ITS OR their respective officers, directors, agents or other representatives will be liable for any damages, direct, indirect, incidental, consequential, special, or punitive, including, without limitation, loss of data, income, profit or goodwill, loss of or damage to property and claims of third parties arising out of your access to or use of this website or arising out of any action taken in response to or as a result of any Content or other information available via this website, however caused, whether based on breach of contract, tort (including negligence), proprietary rights infringement, product liability or otherwise.  The foregoing shall Publisher Propertyly even if Fyber was advised of the possibility of such damages.  If you become dissatisfied in any way with the Service or its Terms of Use or Privacy Policy OR the appLICABLE FYBER AGREEMENT, your sole and exclusive remedy is to stop your use of the this website and service.  You hereby waive any and all claims against Fyber and its agents, representatives and licensors arising out of your use of the Service. Because some states do not allow the disclaimer of implied warranties or the exclusion or limitation of certain types of damages, these provisions may not APPly to you.  If any portion of this limitation on liability is found to be invalid or unenforceable for any reason, then the aggregate liability of Fyber and its affiliates shall not exceed one hundred dollars ($100.)  The limitation of liability herein is a fundamental element of the basis of the bargain and reflects a fair allocation of risk. The Service would not be provided without such limitations and you agree that the limitations and exclusions of liability, disclaimers and exclusive remedies specified herein will survive even if found to have failed in their essential purpose.

Digital Millennium Copyright Act

Fyber is committed to respecting and protecting the legal rights of copyright owners.  As such, Fyber adheres to the following notice and take down policy, in full compliance with Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.).  If you believe any of the Content on this Service or any Publisher Property or advertisement made available via the Network infringes upon your intellectual property rights, please submit a notification alleging such infringement (hereafter a “DMCA Takedown Notice”).  To be valid, a DMCA Takedown Notice must (a) be provided to Fyber’ designated agent, (“Copyright Agent”), as set forth below, and (b) include the following:

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;
• Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;
• Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
• A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• A statement that, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.

Fyber’ Copyright Agent to receive DMCA Takedown Notices is: email: [email protected] For clarity, only DMCA Takedown Notices should go to the Copyright Agent; any other feedback, comments, online purchases or other communications should be directed to the applicable customer service links posted via the Service.  You acknowledge that in order for Fyber to be authorized to remove or disable access to any Content, Publisher Property or advertisement, your DMCA Takedown Notice must comply with all of the requirements of this Section.

Choice of Law

By using the Service, you consent to the application of the laws of the Germany with respect to any dispute arising from or related to the Privacy Policy and/or your use of the Service, other than such rules, regulations, case law, and/or international treaties that would result in the application of the laws of a jurisdiction other than the United States or the State of California, and (c) the exclusive jurisdiction of the courts located in Berlin, Germany. You submit to the jurisdiction and venue of such courts and waive any objection based on inconvenient forum.  Notwithstanding the foregoing, you agree that as a cloud based service, Fyber may process your information in any country in which Fyber operates or offers the Service, Service, or Network.  You further agree that although each of these countries has a set of privacy laws that may differ from those in Germany, Fyber shall only be obligated to treat the privacy of your information in accordance with this Privacy Policy, regardless of the laws in place in these countries.  By providing your information to Fyber, you consent to the transmission to, and processing of your information in, any jurisdiction, in accordance with this Privacy Policy.

No Framing; Links; Third Party Sites

Framing, in-line linking or other methods of association with the Service are expressly prohibited without prior written approval from Fyber.

Ability to Accept Terms of Use

You affirm that you are more than 18 years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in the Terms of Use, and to abide by and comply with the Terms of Use.

Assignment

The Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Fyber without restriction.

Notice

From time to time, Fyber may revise these Terms of Use.  To help you stay current of any changes, Fyber notes the date the Terms of Use was last updated above.  Your use of the Service following the posting of any revised Terms of Use shall be deemed acceptance of the revised policy.  Fyber strongly recommends checking Terms of Use periodically. 

Miscellaneous.

Fyber’ failure to enforce any provision of the Terms of Use shall not be deemed a waiver of such provision nor of the right to enforce such provision.  If any part of the Terms of Use is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Terms of Use shall continue in effect.  A printed version of the Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Fyber, March 2014

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