Unity Ads - Terms of Service for Advertisers
Last updated: May 27, 2020
These Terms of Service for Advertisers, together with any applicable Insertion Order(s) (each an “IO” and, collectively with these terms the “Agreement”) is a binding agreement between you and Unity Technologies SF, which is an entity duly organized and existing under the laws of the state of California (together with its affiliates and subsidiaries, “Unity”), and governs your use of the services and/or products made available by Unity (the “Advertiser Service”). The term “you” (and its variants) as used in this Agreement means, as applicable, either the individual utilizing the Advertiser Service in his or her individual capacity or the company or other entity affiliated with any individual utilizing the Advertiser Service on behalf of that company or other entity. See Section 20 for definitions of certain capitalized terms used in this Agreement.
If you are entering into this Agreement on behalf of a company or other entity (e.g., an Agency on behalf of an Advertiser), you represent that you are a duly authorized employee or agent of such company or other entity with the authority to enter into this Agreement on behalf of such company or entity and the term “you” (and its variants) will also refer to such third party(ies) on a joint and several basis. If you are an individual entering into this Agreement on your own behalf, you represent that you are the age of legal majority or older and have the legal capacity to enter into and be bound by this Agreement.
BY CLICKING TO ACCEPT THIS AGREEMENT, REGISTERING FOR THE ADVERTISER SERVICE, CREATING A SERVICE ACCOUNT OR UTILIZING ANY PART OF THE ADVERTISER SERVICE, INCLUDING THE SERVICE PLATFORM, IN ANY MANNER, YOU REPRESENT AND AFFIRM THAT YOU HAVE READ, UNDERSTAND, ACCEPT AND AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT AND AGREE TO THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO UTILIZE ANY PART OF THE ADVERTISER SERVICE OR THE SERVICE PLATFORM.
You hereby agree as follows:
1. Service Account.
1.1. You agree to provide accurate, current and complete information in connection with registering for the Advertiser Service, any account you create for the Advertiser Service (your “Service Accounts”) and your use of the Service Platform or your use of any other interface related to the Advertiser Service; and to promptly update any such information to keep it accurate, current and complete at all times.
1.2. You are responsible for maintaining the security of all passwords and other credentials issued to or created by you and any of your employees or agents in connection with the Advertiser Service. You are also responsible for any and all activities that occur on, through or under any such credentials or otherwise in connection your Service Accounts and use of the Service Platform, including campaign orders. You agree to immediately notify Unity of any unauthorized use of any of your Service Accounts, passwords or credentials, as well as any other security breach related to your Service Accounts.
2. Campaigns; Ads.
2.1. Subject to this Agreement, you may use the Service Platform and/or, if applicable, execute an IO to specify relevant information for the services and/or campaigns you want to order (e.g., budgets, attribution window, scheduling, territories, bids prices and targeting parameters) (“Campaign Information”) and to supply necessary Ad creative (e.g., videos, end cards, playable, or other creative assets (e.g., art, text, screenshots)). Unity will use the attribution window as provided by your Attribution Partner (as hereinafter defined); provided that you agree to notify Unity of any changes to your attribution window prior to such change. Unity will use commercially reasonable efforts to comply with the Campaign Information and endeavor to deliver inventory for submitted campaign order(s), subject to inventory availability, your compliance with Documentation (as hereinafter defined), and payment in full of all sums payable to Unity pursuant to Section 4 below. Unity is free to determine the size, placement and positioning of your Ads and the Network Properties in which your Ads are delivered, and may crop or resize Ads. Unity may programmatically modify Ad components (e.g., calls-to-action, end cards, text placement) in order to optimize your campaign towards your targets or otherwise to improve campaign performance. Further, where you request such services, Unity may use creative content provided by you to create Ads on your behalf and insert such Ads into your campaigns. You acknowledge and agree that actual budgets, scheduling, bid prices, cost-per-install or other delivery targets or performance metrics, are not guaranteed and you may be charged for inventory delivered in excess of your budgets. You may modify your campaign information from time to time or cancel any campaign through the Service Platform or, if applicable, contact your account manager, provided you acknowledge that it may take up to two (2) business days for any such modification or cancellation to be effective.
2.2. You are responsible for (i) all Ads and other content you provide in connection with the Advertiser Service, (ii) all ad trafficking or targeting decisions made by or on your behalf, (iii) all applications, content and properties to which your Ads direct or redirect any user ("Advertiser Properties"), and (iv) all services and products advertised in any Ads or on any Advertiser Properties ("Advertised Goods").
2.3. You represent and warrant that (A) You own or have all necessary rights (including, all intellectual property and proprietary rights) to your Ads (including, as needed to grant the licenses set forth herein), the Advertiser Properties and the Advertised Goods; (B) the Ads, Advertiser Properties and Advertised Goods (i) will comply with all applicable laws, self-regulatory rules, industry rules and governmental regulations and requirements (collectively, "Applicable Law"); (ii) are not false, deceptive, misleading, unethical, defamatory, libelous, or threatening, harmful, abusive, harassing, tortuous, vulgar, obscene, pornographic, invasive of another's privacy, subversive, hateful, or racially, ethnically or otherwise objectionable or contrary to public interest, public order, or national harmony; (iii) do not infringe or misappropriate the rights of any third party; and (iv) could not reasonably be determined to tarnish the goodwill of Unity or any Network Property; and (C) your use of the Advertiser Service and your Ads will comply with the Advertiser Content Policy as well as Applicable Laws.
2.4. Promotions. Unity may offer promotions to you subject to any terms set out in any applicable Documentation or, if applicable, an IO. You are responsible for all campaign costs that occur beyond the parameters of the promotion described in the applicable Documentation. Unity reserves the right to cancel, terminate, suspend, or modify the promotion or amend the rules at any time, with or without prior notice, and for any reason or no reason at all.
3. Use of the Advertiser Service.
3.1. In connection with your use of the Advertiser Service, you agree to implement and comply with all technical and other requirements for the Advertiser Service (e.g., for conversion tracking or ad tag implementation requirements) communicated to you from time to time by Unity (“Documentation”) and to provide accurate, current and complete versions of your Ads via the Service Platform or other mechanisms Unity requires. You acknowledge that absent such compliance, Unity may be unable to provide the Advertiser Service to you or the Advertiser Service may operate incorrectly. Unity will have no liability to you if Unity is unable to provide the Advertiser Service to you or the Advertiser Service fails to operate correctly as a result of your failure to comply with this Section 3.1.
3.2. You agree you will not, and you will not enable or authorize any third party to, (i) engage in illegal or fraudulent conduct, including by virtue of the Ads, Advertiser Properties, Advertised Goods or use of the Advertiser Service; (ii) use any automated means or form of scraping or data extraction to access, query or otherwise collect information from the Network Properties or the Advertiser Service (including, the Service Platform); (iii) copy, modify or create derivative works of the Advertiser Service or any related technology (including, the Service Platform); (iv) modify, reverse engineer, decompile, disassemble, or interfere with the Advertiser Service (including, the Service Platform), any systems used for calculating ad engagement or conversions, any Network Properties or any device or system; (v) provide Ads that deliver or introduce malware, spyware or any other malicious code or otherwise interfere with the Advertiser Service (including, the Service Platform), any systems used for calculating conversions, any Network Property or any device or system; (vi) breach or circumvent any security measure of Unity or any third party; (vii) sublicense, rent, sell, or lease access to the Advertiser Service or Service Platform; (viii) use the Advertiser Service to create any other product, service or dataset except with respect to Campaign Information; (ix) log, capture, or otherwise create any record of any data transmitted to or from the Advertiser Service; or (x) make or publish any representations or warranties on behalf of Unity concerning the Advertiser Services or Service Platform without Unity’s prior written approval. Unity may, at any time, for any reason or no reason at all, modify or terminate any part or all of the Advertiser Service (including, the Service Platform) or suspend your ability to use the Advertiser Service (including, the Service Platform). Unity may reject or remove any Ad or suspend or terminate any of your campaigns at any time, for any reason or no reason at all. You acknowledge that Unity does not guarantee that impressions will be displayed on any particular Network Property or appear in any particular position or rank.
3.3 Third-Party Terms. Certain parts of the Advertiser Service may require acceptance of third party terms to provide certain products or services to you. You are responsible for reviewing any applicable terms before participating in any part of the Advertiser Service to which such terms apply. You agree that Unity may accept such third-party terms and conditions as agent on your behalf where necessary for Unity to perform the Advertiser Service requested by you. Links to or copies of any such terms will be provided upon request. You hereby authorize Unity to accept such terms on your behalf in order to carry out the Advertiser Service and agree and acknowledge that (i) you will be subject to such additional terms and (ii) Unity shall have no responsibility nor liability in relation to such additional terms.
3.4 Beta/Experimental Services. From time to time, Unity may provide services in experimental, “beta”, or any other in-development release form, including “preview packages” (“Beta Services”), which may be subject to additional terms. You acknowledge and agree that any Beta Services are still in development, unfinished, and may have bugs. Beta Services may not work as intended or at all. As a result, while technical support may be offered by Unity at its sole discretion as described in any Documentation related to such Beta Services, you acknowledge and agree that Unity has no obligation to provide any support in connection with the Beta Services, nor any patches, updates, new releases, or new versions of the Beta Services. Unity may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Unity has no liability for any harm or damage arising out of or in connection with any Beta Services.
4.1. Prepaid Accounts. You will pay for all inventory on a prepaid basis (via PayPal or other payment methods accepted by Unity) ("Prepaid Funds"). All Prepaid Funds paid to Unity are the exclusive property of Unity and non-refundable. Unity will deduct from your Prepaid Funds fees for inventory delivered based on the applicable prices set for you campaign order, amounts for certain applicable taxes and account service fees equal to the balance of any Prepaid Funds not spent within one year. In the event Prepaid Funds are insufficient to cover all fees and other amounts, you agree to immediately fund your Service Account with additional funds sufficient to cover the deficiency. Unity reserves the right to invoice you for applicable fees and other amounts in the event sufficient additional Prepaid Funds are not added to your Service Account within twenty-four hours, which you will be obligated to pay in the currency required by Unity within ten (10) business days.
4.2. Insertion Order Accounts. Unity may, in its sole discretion, allow you to submit an IO requesting services. Unity reserves the right to request a prepayment and/or prepaid retainer from you at any time, which shall be non-refundable and the exclusive property of Unity upon payment. For IO Accounts, payments are due thirty (30) days from invoice date (all payments are due in US Dollars and are exclusive of any taxes). Invoices will be sent at the beginning of the month for the previous months' activity. No deductions for any Agency commissions are permitted. If applicable, Advertiser and Agency are each deemed jointly and severally liable for all payment liability under the IO. In the event an IO includes custom material or other materials created by Unity or any third party, payment shall be non-cancellable and you shall be liable for the entire amount owed.
4.3. General Payment Terms. You agree that you have all necessary rights, power, and authority to authorize each such payment. You agree to maintain sufficient funds or credit availability in your payment method to satisfy your amounts due and that Unity reserves the right to suspend your Service Account if sufficient funds or credit availability are not available at the time your payment is submitted. Without limiting Unity’s rights or remedies, for unpaid invoices, late payments or insufficient funds: (a) Unity may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum rate allowed under Applicable Law; (b) You will reimburse Unity for all costs incurred in connection with the collection of amounts payable and past due (c) Unity reserves the right to suspend your Service Account due to insufficient or late payment (d) You agree that Unity may use any funds otherwise payable to you under any agreement between you and Unity to satisfy any sums you owe to Unity, including, without limitation, unpaid invoices, late payments, interest payments or insufficient payments. Order acceptance is subject to credit approval and you shall provide information reasonably requested by Unity to evaluate each such entity’s credit on an ongoing basis. Unity reserves the right to cancel credit or require prepayment and/or prepaid retainer at any time for any reason in its sole discretion. You acknowledge that Unity is not responsible for and you will bear the cost of inventory associated with invalid activity such as starts, views, clicks or installs not arising from human interaction, click fraud and technological issues.
4.4. Taxes. Unity may deduct any national, federal, state, local, or other taxes and assessments, including value-added taxes and amounts levied in lieu thereof based on charges set, services performed or amounts accrued hereunder. Payments made under this Agreement shall be made without deduction or set-off for any withholding taxes, levies, imports, duties, charges and/or fees imposed by any governmental taxing authority except as required by law. In the event where you are required to make any such deduction as required by Applicable Laws, you will pay to Unity such additional amounts as are necessary to ensure Unity's receipt of the full amount that Unity would have received but for the deduction. You will promptly reimburse Unity for any such taxes or duties that Unity pays to taxing authorities. You will promptly produce any tax information or documentation required by Unity.
5. License Grants.
5.1. You grant Unity a non-exclusive, worldwide, royalty-free, fully-paid up, transferable and sublicensable right and license to access, use, store, distribute, reproduce, modify, transmit, perform, display and publish your Ads in inventory placements in Network Properties and as needed to provide the Advertiser Service. You further grant Unity the express right to use your content, logos, name, and any trade names, without notice or consent, in promotional, sales, financial, marketing and/or public relations materials and other communications to identify that you are a client of the Advertiser Services.
5.2. Subject to your compliance with the terms and conditions of this Agreement, Unity grants you the following limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Service Platform in connection with your authorized use of the Advertiser Service, but solely for your own internal use. You will not use Unity’s trade name, trademarks, logos, or Ads without Unity’s prior written approval.
As between you and Unity, you acknowledge and agree that Unity owns all right, title and interest (including, all intellectual property and proprietary rights) in and to the Advertiser Service, the Service Platform and the Service Data.
7.1. You agree to provide sufficiently clear, meaningful and prominent notice to, and have the appropriate consents from, all users who engage with your Ads regarding the collection, disclosure, use and security of any information you send or make available to Unity pursuant to this Agreement, or which is collected by or provided to you in connection with any of your Ads, all in manner and substance that complies with all Applicable Laws.
7.2. You and/or a third-party tracking conversions on your behalf (“Attribution Partner”) may receive Device Identifiers related to Ads served on your behalf. You represent you will not, and will procure that each Attribution Partner will not, share Device Identifiers received directly or indirectly from Unity with third parties and your use of such Device Identifiers will be used solely for purposes of conversion tracking.
7.3. You represent and warrant that neither you nor any Attribution Partner will: (i) collect, use, transmit, combine, merge, join, synch, combine, link, or analyze any personal information, personally identifiable information or sensitive information (as defined under Applicable Laws) with, or otherwise attempt to re-identify, any Device Identifiers received directly or indirectly from Unity; (ii) use Device Identifiers received directly or indirectly from Unity for any purposes other than calculating conversions and frequency capping of Ads; and (iii) use Device Identifiers and other data received pursuant to this Agreement solely on behalf of Advertiser in connection with the Ads, and no other client of Attribution Partner. Any Attribution Partner shall not be considered a third party beneficiary hereunder and you will ensure that each Attribution Partner complies with the restrictions set forth herein. Any Attribution Partner’s failure to comply with such restrictions will be deemed a breach on your part under this Agreement.
7.4. You may use Service Data directly made available to you by Unity on an aggregated and anonymous basis to assess the performance and effectiveness of your Unity advertising campaigns. You agree you will not use any Service Data for any other purpose and that this prohibition means you may not use any Service Data for retargeting, use any Service Data to build, append to or augment any user, device or other profile, sell any Service Data, combine any Service Data with any data obtained by or on behalf of another advertiser or transfer any Service Data to any ad network, ad exchange, data broker or other advertising or monetization service (including transfer of anonymous, aggregated or derived data).
7.5. In addition to the above, you agree the Controller-Controller DPA applies in addition to these terms.
8. Additional Representations.
You represent and warrant that: (i) you are not located in a country embargoed by the United States and that you are not on the U.S. Treasury Department's list of Specially Designated Nationals; (ii) you have all necessary, right, power, capacity and authority to enter into this Agreement and to perform the acts required of you under this Agreement; and (iii) Unity’s exercise of its licenses and rights and performance under this Agreement will not conflict with or violate any agreement applicable to you or otherwise infringe upon the rights of any third party.
You are not required to provide Feedback to Unity, but in the event you do so, Unity will own the Feedback. You irrevocably assign to Unity all right, title and interest (including all intellectual property and proprietary rights) in and to any Feedback, which Unity, its affiliates and licensees may exploit without restriction or obligation of any sort. If such assignment is not permitted by law, to the maximum extent permitted by law, you grant Unity a nonexclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit Feedback without restriction.
10. Service Modification, Suspension, Discontinuation, and Termination.
Unity may, at any time, for any reason or no reason at all, modify, suspend, terminate or discontinue, temporarily or permanently, all or any part of the Advertiser Service (including any and all features, functionality and availability of any part of the Service Platform) or your use thereof and will not be liable to you or any other party in connection with any such modification, suspension, termination or discontinuance. In addition, Unity may suspend or terminate your Service Accounts and your ability to access or use all or any part of the Advertiser Service and/or the Service Platform, at any time, for any reason.
Confidential Information includes all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether of a technical, business, or other nature that the Receiving Party knows or has reason to know is the confidential, proprietary or trade secret information of the Disclosing Party. Confidential Information does not include information that: (i) was lawfully known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with this Agreement; (ii) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; (iii) is lawfully acquired by the Receiving Party from another source without restriction as to use; or (iv) is or becomes part of the public domain through no act or omission of the Receiving Party. The parties agree: (i) not to disclose or otherwise make available any Confidential Information to any individual, company or other third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section; (ii) to use at least the same degree of care to prevent unauthorized use and disclosure of Confidential Information as the party uses with respect to its own confidential information of like importance (but in no event less than a reasonable degree of care); (iii) to use Confidential Information only for the purpose for which it is provided and as permitted under this Agreement; (iv) all Confidential Information will remain the Disclosing Party’s exclusive property; and (v) to delete and destroy all Confidential Information in Receiving Party’s possession upon written notice from the Disclosing Party or termination of this Agreement. If a Receiving Party is required by law to disclose the Confidential Information of the Disclosing Party, such Receiving Party must give prompt written notice (except where prohibited by law) of such requirement to the Disclosing Party before such disclosure and assist the Disclosing Party in obtaining an order protecting the Confidential Information from public disclosure. The obligations in this Section will survive termination of this Agreement until the expiration of 3 years from the date of last disclosure. Notwithstanding the foregoing, with respect to a Disclosing Party’s trade secrets, the Receiving Party’s obligations under this Agreement remain in effect if the Confidential Information remains a trade secret under the Uniform Trade Secrets Act.
Notices to you may be sent by email to the address you provide to Unity or via the Service Platform. Notices to Unity may be sent by email to email@example.com; provided, however, that any notice to Unity concerning termination, breach, indemnification or any other legal concern (collectively, “Legal Notice”) must be made in writing and delivered by hand delivery, or by internationally recognized overnight courier service, or by prepaid, certified U.S. mail return receipt requested, to: Unity Technologies, 30 3rd Street, San Francisco, CA 94103, USA, Attn: Legal Department.
13. Warranty Disclaimer.
THE ADVERTISER SERVICE, THE SERVICE PLATFORM AND ALL INFORMATION, CONTENT AND MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE ADVERTISER SERVICE ARE PROVIDED BY UNITY ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. UNITY DOES NOT WARRANT THAT THE ADVERTISER SERVICE, THE SERVICE PLATFORM, ANY NETWORK PROPERTY OR ANY PART OF ANY OF THE FOREGOING WILL OPERATE UNINTERRUPTED OR ERROR-FREE. UNITY MAKES NO WARRANTY REGARDING THE RESULTS YOU WILL OBTAIN THROUGH THE USE OF THE ADVERTISER SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNITY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE ADVERTISER SERVICE, THE SERVICE PLATFORM, THE SERVICE DATA, THE NETWORK PROPERTIES AND THE INFORMATION, CONTENT AND MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH ANY OF THE FOREGOING, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT UNITY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE RELIED ON NO WARRANTIES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM UNITY OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
14. Limitation of Liability.
EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, UNITY AND ITS AFFILIATES TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FROM ALL CAUSES OF ACTION ARISING OUT OF OR RELATING TO ANY PART OF, OR IN CONNECTION WITH, THE ADVERTISER SERVICE, THE SERVICE PLATFORM, THE SERVICE DATA, ANY NETWORK PROPERTIES AND/OR THIS AGREEMENT, UNDER ALL THEORIES OF LIABILITY, WILL BE LIMITED TO THE LESSER OF THE AMOUNTS PAID BY YOU IN CONNECTION WITH THE ADVERTISER SERVICE IN THE MOST RECENT THIRTY DAYS PRECEDING THE EVENT GIVING RISE TO LIABILITY OR ONE HUNDRED U.S. DOLLARS (USD $100). EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL UNITY OR ITS AFFILIATES BE LIABLE TO YOU OR ANY OTHER PARTY FOR (I) ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, (II) DAMAGES FOR OR RELATING TO LOSS OF DATA, BUSINESS, REVENUES OR PROFITS (WHETHER DIRECT OR INDIRECT) OR (III) DAMAGES FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES, REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND REGARDLESS OF WHETHER OR NOT UNITY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
You will indemnify, defend and hold harmless Unity and its affiliates and business partners, and any of their respective directors, officers, employees, agents, contractors and licensees, from and against any and all claims, demands, causes of action, settlement costs and damages awarded, including reasonable attorney’s fees, arising from any third-party claim based upon or otherwise arising out of: (i) any claim alleging facts that would constitute a breach of any of your representations, warranties or obligations in this Agreement; (ii) any claim relating to any of the Ads, Advertiser Properties or Advertised Products or your use of the Advertiser Service; (iii) Unity’s use of any content or technology that you require Unity to use; and (iv) any negligent act or willful misconduct by you or any party acting on your behalf. At Unity’s option, you will assume control of the defense and settlement of any claim subject to indemnification by you (provided that, in such event, Unity may at any time elect to take over control of the defense and settlement of any such claim). In any event, you may not settle any claim without Unity’s prior written consent.
16. Choice of Law; Arbitration.
This Agreement is governed by and construed in accordance with the laws of the State of California, United States of America, without regard to or application of conflict of laws rules or principles and regardless of your location. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Except as set forth below, any dispute arising out of or in connection with this Agreement, including any disputes regarding the existence, validity or termination thereof, shall be settled by arbitration. The parties agree to arbitrate all disputes in the City and County of San Francisco, California, United States of America before the American Arbitration Association (“AAA”) and under the then-applicable AAA’s Commercial Arbitration Rules. The arbitration shall be conducted by one (1) arbitrator in English. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND UNITY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may bring an action in any court to enforce its intellectual property or other proprietary rights (including, to seek injunctive relief) or otherwise to seek temporary, preliminary or other expedited or provisional injunctive relief (but not money damages). The parties agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
The term of the Agreement will begin upon the earlier of your acceptance of the Agreement or accessing or utilizing any part of the Advertiser Service or Service Panel and will end when terminated by either party. Each party may terminate this Agreement at any time, with or without cause, by providing at least forty-eight (48) hours' prior notice to the other party as set forth in this Agreement. Upon termination, all rights and obligations of the parties under this Agreement will end, except that fees accrued as of the date of termination, all interest thereon and costs of collection must be paid within thirty (30) days following termination and Sections 1.2, 2.3, 3.2, 4 and 6 through 20 will survive termination.
18. Amendment; Modifications.
Unity may modify this Agreement at any time in its sole discretion. Unity will notify you of any material change by posting a change notice on the Service Platform, upon login, or at https://unity3d.com/legal or otherwise notifying you (including, via email). If any modification is unacceptable to you, your sole and exclusive remedy is to cease using the Advertiser Service and terminate this Agreement. Your continued use of the Advertiser Service or the Service Platform following such notice will constitute your acceptance of the modified Agreement.
The words “include” and “including” and variations thereof will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” This Agreement sets forth the entire agreement between Unity and you related to the subject matter hereof and supersedes any and all prior or contemporaneous agreements (whether written or oral) with respect to the subject matter hereof. In the event of any conflict between the terms of this Agreement and any other agreement including any purchase order terms and conditions or terms and conditions of sale, the terms of this Agreement shall prevail. This Agreement, and any rights and licenses granted hereunder, may not be delegated, transferred or assigned by you without Unity’ prior written consent, and any attempt to do so in breach of the foregoing will be null and void. Unity may freely transfer or assign any or all of its rights and obligations associated with this Agreement at any time. This Agreement will inure to the benefit of and be binding upon each party’s respective successors and assigns. Unity and you are independent contractors, and neither Unity nor you are an agent, representative or partner of the other. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions will remain in full force and effect. Neither party shall be responsible for failure to perform any obligations hereunder (other than the obligation to pay amounts due) due to a cause beyond its reasonable control, including, without limitation, terrorism, fire, civil disturbance, war, rebellion, earthquake, flood and similar occurrences, provided that performance shall resume as soon as possible after the cause no longer prevents performance. The use of headings herein is for convenience only and shall not be used to interpret this Agreement.
20.1. “Ad” means any advertisement or creative (including, for example, AR or playable ad) provided, presented or delivered by from you in connection with the Advertiser Service, including, the content (e.g., text, graphics, images, audio and video), format, URLs, pixels, tags, logos, trademarks, brand features and information included in any such advertisement.
20.2. “Advertiser” if applicable, means "you" the advertiser.
20.3. “Advertiser Content Policy” as used in this Agreement means the guidelines and policies accessible at https://unity3d.com/legal/advertising-content-policy (or a different URL Unity may provide from time to time), which may be modified from time to time without notice. Your continued use of the Advertiser Services following modifications made to the Advertiser Content Policy constitutes your acceptance of them.
20.4. “Agency” if applicable, means “you” the advertising agency acting on behalf of an Advertiser.
20.5. “Controller-Controller DPA” as used in this Agreement means the Monetization and Advertising Controller Data Protection Addendum accessible at https://unity3d.com/legal/Controller_DPA_Monetization_Advertising (or a different URL Unity may provide from time to time), which may be modified from time to time without notice. Your continued use of the Advertiser Services following modifications made to the Controller-Controller DPA constitutes your acceptance of it.
20.6 “Device Identifiers” means Apple IDFAs and Android Advertising IDs.
20.7. “Feedback” as used in this Agreement means any ideas, suggestions or other feedback you provide to Unity or any of its affiliates regarding improvements to or additional features or functionality for the Advertiser Service or any of the Advertiser Service Assets, including, suggestions and feedback you post to the Site or other forums or properties owned or maintained by Unity or its affiliates.
20.8. “Managed Account” means an account that Unity provides support to and which meets minimum spend requirements that may be adjusted from time to time at Unity’s sole discretion.
20.9. “Network Property” means a third-party mobile application or site in which Ads may be delivered through Unity’s advertising network.
20.10. “Service Data” means any data (and each component of such data) collected, received or derived from Ads, the Service Platform or otherwise in connection with the Advertiser Service or any Unity SDK, including data collected through pixels in your Ads or any data obtained from third parties (including Attribution Partners) while providing the Services.
20.11. “Service Platform” means the (i) interface, online campaign administration and reporting platform made available to you in connection with the Advertiser Service (currently available at https://unityads.unity3d.com/admin/#/ and https://dashboard.unityads.unity3d.com/), including all webpages, subpages, content and information related to the Advertiser Service accessible therefrom) and (ii) APIs made available to you for creation, submission and delivery of Ads you with to run via the Advertiser Service.