Terms & Conditions

Effective Date: June 9, 2015

Welcome to Qmobi Ltd!

PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY BEFORE REGISTERING FOR THE Qmobi Ltd SERVICE. REGISTERING FOR, OR USING, THE Qmobi Ltd SERVICE INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER FOR, OR USE, THE Qmobi Ltd SERVICE.

This agreement (“Agreement”) between You (defined below) and Qmobi Ltd Ltd (“Qmobi Ltd”) consists of these terms and conditions and any policy or rules referred to in them and sets out how Qmobi Ltd will work with both Publishers and Advertisers (each defined below) in respect of the Qmobi Ltd website (“Qmobi Ltd Website”) and the Service (defined below). “You” means any entity, whether a Publisher, Advertiser or both, identified in the Sign-Up Form (defined below).

1.    The Qmobi Ltd Service

1.    Qmobi Ltd provides a web-based, global, self-service platform for mobile advertising that enables Publishers (defined below) seeking to monetize their Sites (defined below) to register and make the Sites available in the form of inventory to the Qmobi Ltd network (the “Service”). This inventory is then made available to Advertisers who are able to purchase pre-paid Ads (defined below) in the form of banners and/or other advertising unit formats that are costed on a CPM or CPC basis (each defined below). Funds are drawn down from the Advertiser’s Account (defined below) as their Ads are displayed or clicked-on via the Sites. Each Publisher is then paid a share of the Site Revenue (defined below) thus generated from its Sites.

2.    If Qmobi Ltd makes a material change to terms of this Agreement, Qmobi Ltd will notify You to the email address You provided and/or on the Qmobi Ltd website. Unless you notify Qmobi Ltd otherwise within thirty days of such notice, You will become bound by the modified terms. If You do notify Qmobi Ltd, You will remain bound by the version of the terms before the change for the remainder of the current Term.

3.    Qmobi Ltd may make modifications to the Service, or any aspect of it, from time to time.

4.    Qmobi Ltd will provide the Service to You during the Term of this Agreement and you may use the Service as described in clause 1.1 above. You must comply with this Agreement and You must procure that Your Associates comply. You must use all commercially reasonable efforts to prevent unauthorized used of, or access to, the Service, including safeguarding any usernames and passwords applying to Your Account and You must promptly notify Qmobi Ltd of any such use or access.

5.    Qmobi Ltd warrants that it will comply with the Privacy Policy.

6.    Unless Qmobi Ltd specifically agrees in writing, You must not, and must use commercially reasonable efforts to make sure a third party does not: (a) sub-license, loan, rent, sell, resell, lease or otherwise deal with, the Services to or with a third party; (b) attempt to reverse engineer the Services or any component of the Services; or (c) attempt to create a substitute or similar service through use of, or access to, the Service.

7.    Subject always to termination in accordance with this Agreement, at the expiry of the Term, the Term is renewed automatically for another sixty days by Your continued use of the Service.

2.    Further Definitions

1.    “Account” means an account in which value is stored for You, which value You may then spend in using the Services, or be paid, in each case in accordance with this Agreement.

2.    “Ad” means any advertisement the content of which an Advertiser or its licensor has produced, including but not limited to text links, banners, buttons, videos, interstitials, pop ups and graphics, and that Qmobi Ltd causes to be served to any Publisher’s Site.

3.    “Advertiser” means You where You are an advertiser who uses any aspect of the Services.

4.    “Associate” means, in respect of a party, that part’s group companies, customers, partners, sub-contractors, Associates, agents, networks, officers, directors, joint ventures, owners and employees.

5.    “Confidential Information” means information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances, and does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was lawfully given to the recipient by another party.

6.    “CPM” means charging on the cost-per-thousand advertising model. The Publisher is paid when an Ad is displayed to a visitor to the Publisher’s Site. Impressions are aggregated into groups of one thousand Impressions and payments are calculated and made for each one thousand Impressions.

7.    “CPC” means charging on the cost-per-click advertising model. A click is counted when a visitor to a Site clicks on an Ad, as determined by Qmobi Ltd’s tracking technology (“Click”).

8.    “Impression”: an Impression occurs each time a visitor hit to a Site is recorded, including if an Advertiser visits a Site to which its Ad has been served, this will be counted as an Impression. Where Qmobi Ltd’s administrator visits a Site, no impression will be counted.

9.    “Intellectual Property Rights” means current and future worldwide rights under patent law, copyright law, trade secret law, trade mark law, moral rights law, and all other similar rights.

10.    “Privacy Policy” means the privacy policy, in respect of Your information, that is published on the Qmobi Ltd website and may be amended by Qmobi Ltd and from time to time.

11.    “Publisher” means You where You are a publisher, website owner, app developer or advertising exchange who uses any aspect of the Services.

12.    “Sign-Up Form” means the form submitted on the Qmobi Ltd website by you or your Associate when signing-up for the Service.

13.    “Site” means any online asset such as a mobile site (whether using WAP or any other protocol), mobile Internet site, mobile web site, mobile application or device platform to which Qmobi Ltd serves any Ad.

14.    “Site Revenue” means the advertising revenue actually received by Qmobi Ltd in respect of a Site.

15.    “Taxes” means any duties, customs fees, or taxes (other than Qmobi Ltd’s income tax) associated with the Services, including any related penalties or interest.

16.    “Term” means the lifetime of the contract created by this Agreement, being sixty days, subject always to termination in accordance with this Agreement.

17.    “Visitor” means a unique, individual, human, end-user visitor to a Site, as determined by Qmobi Ltd’s tracking technology.

3.    Accounts

1.    Your Account is a US Dollar (“USD”) account. Qmobi Ltd only accepts payments in USD and only makes payments USD.

2.    Because Qmobi Ltd pays Publishers a share of the amounts paid to Qmobi Ltd by Advertisers, Qmobi Ltd shall not be liable to pay any Publisher if Qmobi Ltd has not received to the relevant Advertiser’s/s’ Account/s the corresponding amounts in full; and Qmobi Ltd shall not be liable to make any payment to any Publisher other than payments funded in accordance with this Agreement from Advertiser Accounts.

3.    You warrant and represent that the information provided in the Sign-Up Form is true and accurate. You must inform Qmobi Ltd promptly in writing if any of that information becomes untrue or inaccurate.

4.    Payments — Advertisers

1.    The provisions of this section 4 apply to Qmobi Ltd and to You if you are an Advertiser.

2.    Except with the prior written consent of Qmobi Ltd, You must pre-pay your Account via the Qmobi Ltd Website using a bank card or Paypal before Your Ads can be served to any Site. Payments by bank card are due immediately upon placement. Qmobi Ltd will charge Your bank card using the details You have provided to us and in the amounts You order through the Service. If bank card authorizations or charge attempts are declined, Qmobi Ltd reserves the right immediately to disable or cancel Your use of the Service, in its sole discretion.

3.    You are responsible for any Taxes and Qmobi Ltd will apply the value in Your Account, in the amounts You order, for the Services without any reduction for such amounts. If Qmobi Ltd is obliged to collect or pay Taxes, the Taxes will be invoiced to You, unless You provide to Qmobi Ltd a valid tax exemption certificate authorized by the appropriate taxing authority. If You are required by law to withhold any Taxes from your payments to Qmobi Ltd, You must provide to Qmobi Ltd an official tax receipt or other appropriate documentation to support this.

4.    The minimum payment permitted is fifty (50) USD. The maximum payment permitted is ten thousand (10 000) USD per transaction and Your Account may not contain more than one hundred thousand (100 000) USD at any time without the prior written consent of Qmobi Ltd. Qmobi Ltd will serve Your Ads to the chosen Sites following receipt of payment to Your Account and within 24 hours after approval of the Ads by Qmobi Ltd; and will cease to serve your Ads to Sites once your Account has been depleted. You are responsible for paying all taxes and government charges, and any reasonable expenses and legal fees Qmobi Ltd incurs in collecting overdue amounts.

5.    Where Qmobi Ltd has given its prior written consent, you may pay into Your Account in arrears. Qmobi Ltd will send you invoices by post or email, which are due and payable immediately. If You do not pay the entire amount of an invoice within fourteen days of your receipt of the invoice, You shall in addition pay interest on the unpaid amount at four per cent per annum over the base lending rate of Bank from time to time, from the payment due date until payment in full. You will also pay all expenses (including lawyer’s fees) reasonably incurred by Qmobi Ltd in collecting such overdue amounts, except to the extent of any invoicing error of Qmobi Ltd.

6.    If you request a refund you must submit the request in writing to Qmobi Ltd. An administration charge of ten percent (10%) will be applied to each refund, subject to a minimum of ten (10) USD. Refunds will be made to the same bank card or account as the original payment, within thirty days of Qmobi Ltd’s receipt of a valid request.

7.    Qmobi Ltd will be solely responsible for determining and counting the Clicks or Impressions for each Ad campaign. No other measurement or statistic of any kind shall be taken into account or have any effect.

8.    Qmobi Ltd may share any bank card or related billing and payment information that Advertiser provides to Qmobi Ltd with third parties such as payment processors solely for the purposes of effecting payments to and from, and servicing, Your Account. Qmobi Ltd shall not be liable for any use or disclosure of such information by such third parties.

5.    Content — Advertisers

1.    You must comply with the technical specifications provided by Qmobi Ltd to enable proper display of the Ads in connection with the Services, including without limitation not modifying the code or configuration provided to You by Qmobi Ltd save to the extent allowed by Qmobi Ltd expressly in writing.

2.    You will use all reasonable efforts to assist Qmobi Ltd with regard to any technical, administrative or other issues that may arise relating to the Ads.

3.    Qmobi Ltd guarantees neither the placement nor the performance of any Ads to any Site. Qmobi Ltd may without notice at any time cease to serve any Ad. Although Qmobi Ltd may evaluate or monitor Ads and Sites, Qmobi Ltd cannot and does not confirm, and is not responsible for ensuring, the lawfulness, accuracy, truthfulness or any other aspect of Ads or Sites.

4.    As between You and Qmobi Ltd and as between Qmobi Ltd and any third party, Qmobi Ltd is not responsible for anything whatsoever regarding Your Ads. Without limitation to the generality of the foregoing, You are solely responsible for the site(s), product(s) and/or service(s) advertised using the Qmobi Ltd Service and for any landing pages and links. You acknowledge that, as between Qmobi Ltd and You, You are solely responsible for image creation, advertising text and for all other content of all Your Ads and ensuring their accuracy and lawfulness, including for those Ads generated by Your Associate.

5.    You represent and warrant that: (a) you are authorized to advertise the items/products/services/brands, whether on behalf of yourself or on behalf of Your Associate; and (b) none of Your Ads contains: (i) pornography, (ii) illegal content of any kind, (iii) illegal drugs promotion, (iv) racism, (v) fraudulent or suspicious content, or (vi) any offensive material. Qmobi Ltd reserves the right at its sole discretion to reject any campaigns including offers for free gifts and promotions, click-to-call services using premium rate numbers, gambling in certain territories and any misleading subscription services.

6.    You grant to Qmobi Ltd and to the Publishers a non-exclusive, worldwide, perpetual, royalty-free licence to copy, distribute and display your Ads for the purposes of the Service, which licences shall survive termination of this Agreement.

7.    You must give an English translation of any international creative material You provide when submitting it for approval.

8.    You must ensure that all targeting accurately reflects the service/product/Site that is being advertised. Qmobi Ltd may remove individual Ads that do not conform to these criteria and/or revoke the Advertiser’s permission to use the Qmobi Ltd Service, in each case as determined by Qmobi Ltd in its sole discretion.

9.    You must submit requests for the removal of an Ad through the Qmobi Ltd Website tools and Qmobi Ltd will respond within 1 hour. Time-bound Ads will be removed in accordance with the date and time specified during the Ad campaign set-up process on the Qmobi Ltd Website.

10.    To ensure continued compliance with this Agreement, if You change the advertised site, linked page or landing page after approval by Qmobi Ltd, Qmobi Ltd may stop the campaign and withdraw any of your Ads immediately and You will not be entitled to any refund.

6.    Payments — Publishers

1.    The provisions of this section 6 apply to Qmobi Ltd and to You if you are a Publisher.

2.    Qmobi Ltd shall pay to You a revenue share of sixty per cent of the Site Revenue generated from Your Site.

3.    Qmobi Ltd will pay You an amount determined in accordance with clause 6.2 within forty days of the end of each calendar month by cheque or Paypal ‘mass payments’ service.

4.    Where the amount payable is less than fifty (50) USD (or a higher amount that You may set), the amount will accrue to Your Account until such time as the amount payable is greater than fifty (50) USD (or that higher amount).

5.    All payments to Publishers will be calculated using Qmobi Ltd records only; no other information will be considered. If You are a company or partnership and wish to dispute a payment, You must submit the dispute in writing to Qmobi Ltd on Your company or partnership letterhead. Qmobi Ltd will respond within thirty days with the relevant reports.

6.    Without prejudice to any other rights and remedies of Qmobi Ltd, Qmobi Ltd reserves the right not to pay any amount to any Publisher that is in breach of any provision of this Agreement or has acted negligently or fraudulently. Without limitation, Qmobi Ltd shall determine in its sole and absolute discretion which acts or omissions include or constitute activity that is deceptive or fraudulent in nature or otherwise unacceptable. Qmobi Ltd will not pay or compensate any Publisher in any way for any impressions or clicks that have been determined by Qmobi Ltd to be invalid or fraudulent. In the event that the Publisher has already received payment for invalid impressions or clicks, Qmobi Ltd reserves the right to seek credit or remedy from future earnings and/or to demand re-imbursement from the Publisher.

7.    Content — Publishers

1.    You represent and warrant that each of its Sites: (i) is owned by or licensed to Publisher; (ii) is not illegal or non-compliant with regulation; (iii) does not infringe in any manner any copyright, database right, design right, patent, trade mark, trade secret or other intellectual property right of any third party anywhere in the world, and whether registered or unregistered; (iv) does not breach any duty towards, or rights of, any person or entity including, without limitation, rights of publicity or privacy, and has not otherwise resulted in and is not likely to result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (v) is not false, deceptive or misleading; (vi) is not defamatory, libellous, slanderous or threatening; (vii) is free of viruses, trojan horses, trap doors, back doors, worms, time bombs, cancelbots, spyware and other computer programming routines that may potentially damage, interfere with, intercept, or expropriate any system, data or personal information; and (viii) does not contain pornography, illegal content of any kind, illegal drugs promotion, racism, fraudulent or suspicious content, content that promotes gambling, gaming and/or any other activity with an entry fee and a prize, or any offensive material.

2.    As between You and Qmobi Ltd and as between Qmobi Ltd and any third party, Qmobi Ltd is not responsible for anything whatsoever regarding Your Site(s). Without limitation to the generality of the foregoing, You are solely responsible for the site(s), product(s) and/or service(s) referred to on Your Site(s), including any landing pages and links. You acknowledge that, as between Qmobi Ltd and You, You are solely responsible for image creation, text and for all other content of all Your Site(s) and ensuring their accuracy and lawfulness, including for those of your Site(s) that are generated by Your Associate.

3.    You must not engage in any fraudulent activity either directly or via any third party, including without limitation clicking on Ads other than by end users; causing automated robots to visiting Sites; encouraging users via incentives to click on Ads etc. If Qmobi Ltd, in its sole discretion, determines that you have engaged in any fraudulent activity, Qmobi Ltd may terminate your Account and this Agreement and reserves the right to withhold without refund any amount accrued or expected to accrue to Your Account up to an amount equal to all losses and damages that Qmobi Ltd may suffer as a result of the fraudulent activity. You must not engage in any action or practice that reflects poorly on Qmobi Ltd or otherwise disparages or devalues Qmobi Ltd’s reputation or goodwill.

4.    Qmobi Ltd guarantees neither the placement nor the performance of Ads to or on any Site. Qmobi Ltd may without notice at any time cease to serve Ads to any Site. Although Qmobi Ltd may evaluate or monitor Ads and Sites, Qmobi Ltd cannot and does not confirm, and is not responsible for ensuring, the lawfulness, accuracy, truthfulness or any other aspect of Ads or Sites.

5.    You will make Your Sites available for Ad targeting. Qmobi Ltd may retain and process all data pertaining to the display of each Ad including any targeting information specified by You.

8.    Account Management — Advertisers

1.    Qmobi Ltd will flag Your Account via email if there has been no change in the balance for 30 days. Accounts are designated inactive if for 180 days: no funds are transferred into the Account; there are no Impressions or Clicks on any Ad served to Your Site(s); and You do not request payment of your balance. Qmobi Ltd will then contact you regarding the payment to You of the amount in Your Account and the closure of your Account.

9.    Account Management — Publishers

1.    Qmobi Ltd will flag Your Account via email if there has been no change in the balance after 30 days. Accounts are designated inactive if for 180 days: no funds are transferred into the Account; there are no Impressions or Clicks on Your Ads; and You do not request payment of your balance. Qmobi Ltd will then contact you regarding the payment to You of the amount in Your Account and the closure of your Account.

10.    Communications

1.    You must direct to Qmobi Ltd and, without limitation, not to any advertiser or publisher, all communications regarding any matter arising out of any user’s use of the Service. Without limiting the foregoing, You must not initiate any communication of any kind that encourages, solicits, induces, diverts, entices or otherwise takes away from Qmobi Ltd the business or patronage of any party that was within the preceding six months an Advertiser or Publisher.

2.    If an Advertiser, who is currently running, or has previously run, an Ad campaign on a Publisher’s Site(s) through the Service, approaches that Publisher directly with regard to mobile advertising, the Publisher must refuse to work directly with them, and refer the Advertiser back to Qmobi Ltd unless agreed otherwise in writing with Qmobi Ltd.

11.    Confidentiality, PR

1.    Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to its Associates who need to know it in connection with the lawful use of the Service and who have agreed in writing to keep it confidential. Each party (and every Associate to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfil obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its Associates in breach of this clause. Each party may disclose the other party’s Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.

2.    You hereby consent to Qmobi Ltd’s inclusion of Your name in a customer list. Other than this, neither party may make any public statement regarding this Agreement without the other party’s prior written consent.

3.    No press release, promotional or merchandising material, or general public announcement shall be made without the prior written consent of both parties.

12.    Blog and Forum: In using the blog and forum contained within the Service, You shall comply with, and You agree to be bound by, the moderation policy that Qmobi Ltd publishes on its website from time to time.

13.    Entire Agreement: This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all other agreements, written or oral, regarding such subject matter. Any rights not expressly granted in this Agreement are reserved by Qmobi Ltd and all implied licences are disclaimed. Qmobi Ltd reserves the right to amend any part of this Agreement at any time and your continued use of the Service constitutes your acceptance of each amended version of this Agreement.

14.    Relationship of Parties: This Agreement does not constitute, create, or give effect to any employer/employee or franchiser/franchisee relationship, nor any joint venture, partnership, limited partnership, or agency between the parties, and the parties hereby acknowledge that no other facts of relations exist that would constitute, create, or give to effect any such relationship between them.

15.    Notices: Except as expressly set forth herein, any notices to be given pursuant to this Agreement shall be in writing and, in the case you You, may be sent by email to Your email address as identified in Your account information. The receipt of such notice shall constitute the giving of the notice.

16.    No Waiver: No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.

17.    Severability: If any provision of this Agreement is held to be ineffective, unenforceable or illegal for any reason, such decision shall not affect the validity of any or all of the remaining portions thereof.

18.    Force Majeure: Neither party shall be held liable or responsible to the other party nor be deemed to have defaulted under or have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by or results from any causes beyond the reasonable control of the affected party.

19.    Assignment: In Qmobi Ltd’s sole discretion, Qmobi Ltd may assign this Agreement by giving you written notice (but without your prior express consent), provided that Qmobi Ltd assigns the Agreement on the same terms or terms that are no less advantageous to You.

20.    Third Party Rights: A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party specified in this Agreement or which exists or is available apart from that Act.

21.    Termination: You may discontinue use of the Service at any time. Qmobi Ltd may at any time, in its sole discretion, suspend, modify or terminate all or part of the Service, terminate this Agreement, or suspend or terminate Your participation, that of Your Associate, or that of any Site or Ad, in all or part of the Service for any reason, in each case without notice or liability arising from such modification, suspension or termination. The provisions of this Agreement regarding confidentiality, further representations and warranties, termination, indemnification, exclusion of warranties, limitation of liability and law and jurisdiction shall survive the expiration or termination of this Agreement.

22.    Intellectual Property Rights: Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content, Site, Ad or any of the other’s intellectual property. As between the parties, You own all Intellectual Property Rights in Your Ads and/or Site, and Qmobi Ltd owns all Intellectual Property Rights in the Service.

23.    Indemnification: You shall indemnify and defend Qmobi Ltd and its Associates (collectively, the “Indemnified Parties”) from and against any and all liability, costs, losses, damages, claims and demands, including without limitation lawyers’ fees and costs incurred by the Indemnified Parties, arising out of or related to (a) Your Ad(s) and/or Site(s); or (b) Your breach of any warranty or representation you give in this Agreement. In seeking indemnification, Qmobi Ltd will promptly notify You of the claim and cooperate with You in defending the claim. You will have full control and authority over the defence, except that: (a) any settlement requiring Qmobi Ltd to admit liability or to do or refrain from any act or omission will require Qmobi Ltd’s prior written consent, such consent not to be unreasonably withheld; and (b) Qmobi Ltd may join in the defence with its own counsel at its own expense.

24.    Further Representations and Warranties: Each party represents and warrants that it has full power and authority to enter into this Agreement and that there is no legal reason why it cannot enter into this Agreement. By entering into this Agreement, whether as a Publisher, Advertiser or both, You represent and warrant that: (a) You own and control, or have the requisite licences to control, Your Ads and/or Sites (as applicable); (b) You have and will maintain all rights, authorizations and licences that are required to permit You to use the Service; (c) the execution and delivery of this Agreement, and Your performance of Your obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which You or any of Your Associates are party or violate any rights of any third party; (d) You will comply with all laws and regulations applicable to or otherwise connected with Your use of the Service; and (e) that, where You are an individual, You are at least 18 years of age.

25.    Exclusion of Warranties: SAVE AS SET FORTH IN THIS AGREEMENT, Qmobi Ltd MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE SERVICE, ADS OR SITES, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT, SATISFACTORY QUALITY AND FITNESS FOR ANY PARTICULAR PURPOSE. TO THE EXTENT THE SERVICE, ADS OR SITES ARE BASED ON OR DISPLAYED IN CONNECTION WITH NON-Qmobi Ltd CONTENT, Qmobi Ltd SHALL NOT HAVE ANY LIABILITY IN CONNECTION WITH THE DISPLAY OF THE SERVICE, ADS OR SITES. Qmobi Ltd cannot guarantee continuous or secure access to the Service and operation of the Qmobi Ltd website may be affected by many factors outside of Qmobi Ltd’s control. While Qmobi Ltd will use reasonable endeavours to maintain an uninterrupted service, Qmobi Ltd CANNOT GUARANTEE THIS AND DOES NOT GIVE ANY PROMISES OR WARRANTIES (WHETHER EXPRESS OR IMPLIED) ABOUT THE AVAILABILITY OF THE SERVICE.

26.    TO THE EXTENT THAT THE EXCLUSION OF IMPLIED WARRANTIES IS NOT ALLOWED BY LAW, THEN, TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO SIXTY (60) DAYS FROM THE START OF THE TERM.

27.    Limitation of Liability. If You have a dispute with one or more other users of the Service, you hereby release Qmobi Ltd (and our Associates) from claims, demands and damages (actual and consequential) of every kind, known and unknown, arising out of or in any way connected with such dispute.

28.    Nothing in this Agreement shall limit or exclude the liability of any party for fraudulent misrepresentation, for death or personal injury resulting from its negligence or the negligence of its Associate or for any other liability that cannot be limited or excluded by law.

29.    EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, OR YOUR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL LOSS, WHETHER IN CONTRACT, TORT OR OTHERWISE, BASED UPON A CLAIM OF ANY TYPE (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, INCLUDING NEGLIGENCE, WARRANTY, REPRESENTATION OR STRICT LIABILITY).

30.    IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF ANTICIPATED PROFITS, LOSS OF GOODWILL OR LOSS OF DATA.

31.    IN ANY EVENT, Qmobi Ltd’S TOTAL OBLIGATIONS AND/OR LIABILITY CAN NEVER EXCEED THE VALUE OF THE SPECIFIC ADVERTISING CAMPAIGN TO WHICH THE CLAIM RELATES DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.

32.    Governing Law and Jurisdiction. This Agreement will be governed by and construed under the laws of British Columbia, Canada without regard to the conflicts of law provisions thereof. Any action relating to this Agreement must be brought in such courts.