THESE TERMS OF SERVICE, INCLUDING ANY ATTACHMENTS, EXHIBITS, SCHEDULES, OR OTHER DOCUMENTS WHICH ARE HEREBY INCORPORATED BY REFERENCE (“TERMS OF SERVICE” OR “AGREEMENT”), CONSTITUTE A LEGAL AGREEMENT AND ARE ENTERED INTO BETWEEN APPLE AND THE ENTITY AGREEING TO THESE TERMS OF SERVICE OR ITS AUTHORIZED REPRESENTATIVE, INCLUDING EMPLOYEES, AGENTS, ASSIGNS, NOMINEES, CONSULTANTS, AND CONTRACTORS (INDIVIDUALLY OR COLLECTIVELY A “CONTENT PROVIDER” OR “YOU”), GOVERNING ACCESS TO OR THE USE OF THE SERVICES PROVIDED BY APPLE (I) ASSOCIATED WITH THE ACCOUNT CREATED, ACCESSED, OR USED BY YOU IN CONNECTION WITH THESE TERMS OF SERVICE, (II) RELATED TO THE DISTRIBUTION OF YOUR AD CONTENT (DEFINED BELOW), OR (III) RELATED TO ANY OTHER SERVICES, PROGRAMS, OR PRODUCTS THAT INCORPORATE BY REFERENCE THESE TERMS OF SERVICE (COLLECTIVELY, THE “SERVICES”).
Unless otherwise specified herein, “Apple” shall mean one or more of the entities listed in the Apple Advertising Services Countries and Regions Specific Terms available at searchads.apple.com/terms and/or ads.apple.com/cn/terms (which are hereby incorporated into these Terms of Service by reference and as may be amended from time to time).
You certify to Apple and agree that You or Your representative or agent entering into these Terms of Service is of the legal age of majority in the jurisdiction(s) in which You reside (at least 18 years of age in many countries) and have the right and authority to enter into these Terms of Service on Your own behalf, and that if Your representative or agent is entering into these Terms of Service on behalf of You as a company, organization, educational institution, or agency, instrumentality, or department of the government, that such representative or agent has the right and authority to legally bind You to all the terms and obligations of these Terms of Service.
You agree to accept and abide by these Terms of Service as presented; changes, additions, or deletions are not agreed to by Apple, and Apple may deny access to the Services for noncompliance with any part of these Terms of Service or for any other reason at Apple’s sole discretion.
THE ENGLISH LANGUAGE VERSION OF THIS AGREEMENT SHALL BE THE ORIGINAL, GOVERNING INSTRUMENT AND UNDERSTANDING OF THE PARTIES. IF THIS AGREEMENT IS MADE AVAILABLE BY APPLE IN ANY LANGUAGE OTHER THAN ENGLISH, THE ENGLISH LANGUAGE VERSION SHALL GOVERN AND CONTROL IN THE EVENT OF ANY CONFLICT WITH ANY TRANSLATION INTO ANY OTHER LANGUAGE.
In consideration of the foregoing and of the mutual promises and covenants set forth herein, You and Apple (collectively, the “Parties”) agree as follows:
1. Access. Access to the Services is made available, at Apple’s sole discretion, only to a Content Provider that has one or more valid agreements with Apple or Apple affiliates relating to: (a) a Content Provider whose materials are served on the Properties (defined below), or (b) other persons or entities as determined by Apple in its sole discretion.
2. System Requirements. Use of the Services may require compatible hardware, internet and/or mobile access, certain software, and may require obtaining updates or upgrades from time to time. Fees may apply to Content Provider’s system requirements. Because use of the Services may involve hardware, software, and internet and/or mobile access, Your ability to use the Services may be affected by the performance of these factors. High-speed internet and/or mobile access is strongly recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are Your responsibility. You further acknowledge and agree that the Services constitute commercial services for commercial use.
3. Other Agreements. Any other agreements in effect between Apple and You that do not incorporate these Terms of Service or are not incorporated herein (collectively, the “Other Agreements”) are separate from these Terms of Service. You acknowledge and agree that the performance of Your obligations under these Terms of Service shall not be conditioned on Apple entering into any further agreements or providing any additional representations or warranties relating to the Services.
5. Account and Password. As a registered user of the Services, You may be required to establish an account to use the Services (“Account”). You are solely responsible for Your Account, including maintaining the confidentiality and security of Your Account. You may not reveal Your Account information to anyone else, allow anyone to use Your Account, or use anyone else’s Account without authorization. You are entirely responsible for all activities that occur on or through Your Account, including those activities You authorize or direct Apple to perform on Your behalf, and You agree to immediately notify Apple of any unauthorized use of Your Account or any other breach of security. Apple shall not be responsible for any losses arising out of the unauthorized or other improper use of Your Account, except for such losses caused solely by Apple’s own conduct.
6. Advertising Services.
a. Overview. Upon acceptance of these Terms of Service, and upon completing other processes or approvals as may be required by Apple, You may use the Services to set up, manage, and pay Apple for advertising campaigns (“Campaigns”) in which Apple will deliver Your advertising content, including the products, services, and activities depicted and express or implied claims made therein (“Ad Content”) on the relevant Apple software applications or Apple devices (collectively, the “Properties”).
b. Targeting. You understand and agree that Apple may offer You the ability to select, implement, or use features or functionalities of the Services to assist You in optimizing or targeting the delivery of Your Ad Content on those Properties where such features or functionalities are available, including but not limited to: (I) ad creative, (II) ad trafficking and/or targeting decisions, including keyword selection, bids, and segments, (III) Properties, (IV) destinations to which the Ad Content may direct viewers (e.g., app downloads, URLs, landing pages), and (V) the related URLs and redirects and the services and products advertised on such URLs and redirects (collectively, “Targeting”). Targeting may or may not be made available on any or all Properties and for any or all of Your Campaigns or Ad Content. Where applicable, Apple and its affiliates may make available to You certain optional features related to Targeting, such as suggestions or recommendations relating to keywords or auction bids, intended to assist You with the selection and generation of Targeting. You understand and agree that You are not required to implement, use, authorize the use of, or rely upon any Targeting features and, as applicable, may opt-in or opt-out of usage of these features. YOU UNDERSTAND AND AGREE THAT YOUR IMPLEMENTATION, USE, AUTHORIZATION OF, RELIANCE UPON, AND DECISIONS RELATING TO ANY TARGETING, INCLUDING ANY OPTIONAL TARGETING FEATURES, WHETHER OR NOT IMPLEMENTED USING FEATURES OR FUNCTIONALITIES OF THE SERVICES, SHALL BE YOUR SOLE RESPONSIBILITY FOR WHICH YOU SHALL BE SOLELY LIABLE, AND YOU SHALL COMPLY WITH ALL APPLICABLE LEGAL AND REGULATORY REQUIREMENTS, INCLUDING THOSE OF THE JURISDICTION(S) IN WHICH YOU RESIDE OR ARE LOCATED OR TO WHICH YOU ARE SUBJECT AND THOSE OF EACH JURISDICTION IN WHICH YOUR CAMPAIGNS OR AD CONTENT ARE DISPLAYED. You further understand and agree that Targeting services and features, including any aspect thereof are provided, and may be modified, suspended, or terminated, at Apple’s sole discretion. Subject to the foregoing, You authorize Apple to implement all Targeting You select, implement, or use.
c. Beta, Ad Experiments, Testing. You acknowledge and agree that Apple or its affiliates may, with or without notice to You, conduct, participate in, or implement tests or experiments that may, directly or indirectly, use or affect Your Campaigns or Ad Content or otherwise affect Your use of the Services (“Testing”), which, unless otherwise agreed, shall be governed by these Terms of Service. You agree to not disclose any non-public information regarding such Testing and related programs, products, or features, including their existence.
d. Advertiser Data. To the extent any features or functionalities of the Services allow You to provide information about Your customers, products, and services to Apple (“Advertiser Data”) in order to use Targeting, and You elect to use them, You acknowledge and agree that Apple may use Your Advertiser Data for the purpose of fulfilling Your Targeting. You further acknowledge and agree that You are solely responsible for the security and confidentiality of Your Advertiser Data (subject to the Apple Warranty in Section 6(h) herein), You have the necessary permissions and consents (as needed) to use and provide Your Advertiser Data, You undertake that You will only use the Advertiser Data via the Services where you have lawful, permitted purposes, and You will remove the Advertiser Data from all Apple systems and properties used by You in connection with the Services if You no longer intend to use such data in connection with the Services. You further acknowledge and agree that Apple may use information about Your use of the Services and Your interactions with Apple in connection with the Services, including Advertiser Data and Business User Data, for the purpose of providing, evaluating, modifying, or improving the Services and for communicating about the Services. You further acknowledge and agree that Apple may have a duty to publish or disclose information concerning Your use of the Services, Your Ad Content, or Your Campaigns (including Apple’s decision not to display Your Ad Content or Campaigns, or to suspend, terminate or limit display of Your Ad Content or Campaigns), and Apple has no liability to You in connection with any publication or disclosure that Apple considers in good faith to be required pursuant to that duty.
e. Right to Reject Ad Content. Apple reserves the right to: (I) reject, remove, cancel, not approve, or revoke approval for any Ad Content, Campaign, or Targeting at any time and for any reason, including but not limited to belief by Apple that placement of Ad Content may subject Apple to criminal or civil liability, may contravene the Terms of Service, may contravene Apple’s policies, or may be adverse to Apple’s business interests; (II) request modifications to Ad Content, including as a condition for approval for dissemination or the continuation of dissemination, and (III) reasonably mark or designate the Ad Content as advertising or promotional material consistent with applicable laws, regulations, or industry practices, or modify Your Ad Content in a non-material manner, including without limitation zooming or cropping, as reasonably necessary to provide the Services. Notwithstanding the foregoing, You are solely responsible for Your Ad Content as provided to Apple. You also understand and agree that some Ad Content, Content Providers or materials owned by the Content Provider, or advertiser products and/or services may not be eligible for promotion using the Services. The fact that Apple has not rejected, removed, or cancelled any Ad Content shall not in any way waive, reduce, limit, or otherwise affect Your responsibilities and obligations under these Terms of Service. Nothing in this Agreement or Apple’s provision of the Services shall be construed as Apple’s endorsement of any of Your Ad Content.
f. Limited License to Ad Content. You hereby grant to Apple a non-exclusive, royalty-free, worldwide, fully paid license to store, use, reproduce, modify (for formatting purposes only), transmit, perform, and display the Ad Content (which shall be deemed to include all content, including text, audio, video, images, deliverables, digital files, web pages, trademarks, brand features, or any other intellectual property contained therein or accessible therefrom): (i) for purposes of delivering the Services, including but not limited to Testing, (ii) as may be required under all applicable laws or regulations, or (iii) as expressly permitted by these Terms of Service.
g. Content Provider Representations, Warranties, and Covenants. You represent, warrant, and agree that: (I) You have full power to enter into and carry out Your obligations under these Terms of Service, and upon Apple’s request, You can and shall immediately demonstrate such power and/or authorization to Apple’s satisfaction, and understand and acknowledge that Your failure to do so will be deemed a material breach of these Terms of Service; (II) Your acts and practices in accessing or using the Services, Your Ad Content, and Advertiser Data, are and shall remain in full compliance with all applicable legal and regulatory requirements, including those of the jurisdiction(s) in which You reside or are located or to which You are subject, and those of each jurisdiction in which Your Campaigns or Ad Content are displayed; (III) AS BETWEEN YOU AND APPLE, YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR YOUR AD CONTENT, ADVERTISER DATA, AND TARGETING; (IV) You hold the necessary rights, authorizations, permissions, and consents to permit all uses of the Ad Content and Advertiser Data in connection with the Services and to permit all uses of Ad Content and Advertiser Data by Apple as part of providing the Services; (V) You can and shall remove any Ad Content or Advertiser Data if and to the extent You no longer have all necessary rights, authorizations, permissions, or consents to use such Ad Content or Advertiser Data; (VI) You shall not, and shall not authorize any party to, generate automated, fraudulent, or otherwise invalid clicks, impressions, or other actions; (VII) You will not knowingly breach or circumvent any security measure; (VIII) YOUR SELECTIONS AND DECISIONS RELATING TO TARGETING, IF ANY, SHALL FULLY COMPLY WITH ALL APPLICABLE LEGAL AND REGULATORY REQUIREMENTS, INCLUDING ANY REQUIREMENTS AND RESTRICTIONS RELATING TO THE SELECTION, IMPLEMENTATION, OR USE OF KEYWORDS OF THE JURISDICTION(S) IN WHICH YOU RESIDE OR ARE LOCATED OR TO WHICH YOU ARE SUBJECT, AND OF EACH JURISDICTION IN WHICH YOUR CAMPAIGNS OR AD CONTENT ARE DISPLAYED; (IX) none of the Advertiser Data or Ad Content or the use thereof does or will: (A) infringe on any third party’s copyright, patent, trademark, trade secret, or any other intellectual property or proprietary rights; (B) violate any law, statute, ordinance, or regulation, including, without limitation, the laws and regulations governing export control and applicable sanctions; (C) be defamatory or trade libelous; (D) be pornographic or obscene; or (E) contain malware, spyware, viruses, Trojan horses, worms, time bombs, ransomware, or other similar harmful or deleterious programming routines; (X) You have obtained all applicable approvals, licenses, and permits required for the Ad Content, Advertiser Data, and advertiser products and/or services, as well as Your use thereof, and shall be responsible for maintaining such approvals, licenses, and permits in full force and effect during the term of these Terms of Service; and (XI) if You access, use, or implement the Services on behalf of a third party (for example, as an agent or service provider): (i) You are and shall be lawfully authorized to access, use, or implement the Services on behalf of each such third party in that capacity; (ii) Your access, use, or implementation of the Services shall not exceed the lawful authorization provided by each such third party; (iii) You will have bound each such third party to these Terms of Service, and if for any reason You have not bound any such third party to these Terms of Service, You will be liable for performing any obligation each such third party would have had under these Terms of Service; and (iv) You authorize Apple to communicate with each such third party as reasonably necessary, including to validate the authorizations specified in Section 6(g)(XI)(i)-(iii) or to provide information or materials required by applicable law or regulations, and You shall assist Apple in such communications upon Apple’s request.
h. Apple Warranty. Apple represents and warrants that: (I) it has full power to enter into and carry out its obligations under these Terms of Service; and (II) the Services shall be completed in a professional manner. Unless otherwise stated herein, and subject to Section 9(a), Your sole contractual remedy for any breach of the foregoing warranties, if applicable, is set forth in Section 9(g) of these Terms of Service.
i. Marketing Permission. You agree that Apple may send You marketing communications regarding the Services. Apple may request, and You agree to not unreasonably deny, permission to use the Ad Content, including all trademarks and logos included in the Ad Content, for promotional purposes in Apple marketing materials. Apple must approve in writing any press release or announcement that refers or relates to these Terms of Service, the Ad Content, or Your relationship with Apple.
j. Apple Marks. You shall not use Apple’s trademarks, service marks, trade names, logos, or other commercial or product designations for any purpose without first obtaining Apple’s prior written consent. All other rights in relation to the trademarks (including statutory rights) are expressly excluded to the extent permitted by law.
k. Reporting Metrics. If Apple offers, provides, or makes available reporting or analytics about the performance of Your Campaigns (“Reporting Metrics”), you acknowledge and agree that as between the Parties such Reporting Metrics shall be the sole authorized and definite measurements of Apple’s performance relating to the delivery of the Services, and that no other reporting metrics, third party or otherwise, shall be permitted or deemed authorized or definite in connection with the Services; provided, however, that Apple makes no guarantees with respect to the suitability or reliability of the Reporting Metrics, including, without limitation, impressions, conversions, and taps, in connection with the Services.
m. Compliance with Specifications, Content Guidelines and Policy Guidelines. You agree to comply with the instructions, requests, requirements, conditions, specifications, and policy and content guidelines as provided by Apple in connection with the Services, including, without limitation, technical specifications and policy and content guidelines provided or made available by Apple, including all those available at searchads.apple.com/terms and/or ads.apple.com/cn/terms (each incorporated into these Terms of Service by reference and as may be amended from time to time by Apple) and which You agree to visit and review regularly. You are solely responsible for the proper content, format, functioning, and keeping up-to-date Ad Content submitted by You or otherwise used in connection with the Services. For advertising on the App Store, You acknowledge that changes made to Your App Store submission (e.g., price, description, etc.) may impact your Ad Content and that such changes in the App Store can take up to sixteen (16) hours to be reflected in the Services. As between the Parties, You are responsible for all costs and expenses incurred in connection with development, certification, and approval of Your Ad Content.
n. Relationship of the Parties. These Terms of Service create an independent contractor relationship between You and Apple. No employment relationship, agency relationship, partnership, joint venture, fiduciary duty, or any other form of legal association between You and Apple is created by these Terms of Service, and You will not represent to the contrary, whether expressly, by implication, appearance or otherwise.
o. Confidentiality. From time to time, a party (as the “Discloser”) may disclose or make available to the other party (as the “Recipient”), in any form (e.g., written, oral, visual, electronic, or any other tangible or intangible form), certain nonpublic, proprietary, and confidential information or materials, whether or not labeled or designated as confidential (“Confidential Information”). Confidential Information shall include, without limitation, nonpublic, proprietary, and confidential information about the business relationship between You and Apple, Apple’s provision of, and the results from the use of the Services, and all discussions related thereto (e.g., nonpublic product plans, marketing plans), Reporting Metrics, and any other Apple IP (defined below). Notwithstanding the foregoing, Confidential Information shall not include information that: (I) is now or subsequently becomes generally available to the public through no fault or breach on the part of the Recipient; (II) Recipient can demonstrate to have had rightfully in its possession prior to disclosure to Recipient by Discloser; (III) is independently developed by Recipient without use of any Confidential Information; and (IV) Recipient rightfully obtains from a third party who has the right to transfer or disclose it to Recipient without limitation. In addition, Confidential Information shall not include any free and open source software (“FOSS”) included in the Services and accompanied by licensing terms that do not impose confidentiality obligations on the use or disclosure of such FOSS. Nothing in these Terms of Service will obligate either party to disclose any Confidential Information.
p. Obligations Regarding Confidential Information. Subject to and without limiting the permissions and license grants expressly set forth herein Recipient agrees to: (I) protect Discloser’s Confidential Information, using at least the same degree of care that it uses to protect its own confidential and proprietary information of similar importance, but no less than a reasonable degree of care, (II) use Discloser’s Confidential Information for the sole purpose of fulfilling its obligations and exercising its rights under these Terms of Service and under no circumstances for its own or any third party’s benefit, and (III) not disclose, publish, or disseminate Confidential Information to anyone other than those employees and consultants who have a need to know in order to accomplish such purpose and who are bound by these Terms of Service, which prohibits unauthorized disclosure or use of Confidential Information. Recipient will be responsible for any violation of the terms of this Section, including by its employees or consultants. Recipient may disclose Confidential Information to the extent required by law, provided Recipient makes reasonable efforts to give Discloser notice of such requirement prior to such disclosure and takes reasonable steps to obtain protective treatment of the Confidential Information.
q. Ownership. Unless otherwise specified herein, as between Apple and the Content Provider, the Content Provider retains all right, title, and interest, including all intellectual property rights, in any Ad Content submitted by You, provided that the Ad Content does not incorporate any Apple Confidential Information or Apple intellectual property, including code, tools, and technology used in connection with the Services or the Properties (“Apple IP”). Apple retains all right, title, and interest in: (I) the Apple IP; and (II) all analyses, reports, data, and other information developed by Apple relating to use of the Services, whether or not disclosed to Content Providers.
r. Personal Data Privacy and Security. If at any time You determine that any feature or functionality of the Services allows You to collect personally identifiable information (“Personal Data”), You shall: (I) notify Apple immediately in writing; (II) maintain strict confidentiality and security measures to protect the Personal Data; (III) not disclose any Personal Data to any other party; (IV) notify Apple immediately if there is any potential or actual breach of security involving the Personal Data; (V) comply with all applicable laws, regulations, and international accords or treaties pertaining to Personal Data, including as applicable to transfers of Personal Data from the European Economic Area or Switzerland to a jurisdiction which the European Commission or, where relevant, the Swiss Federal Data Protection and Information Commissioner, have not determined as ensuring an adequate level of protection of Personal Data.
Consistent with Apple’s policy on tracking, You agree that in connection with the Services, You will not, and will not attempt to, access, use, or otherwise process any information that can be used to track any individual or device, except with the user’s explicit permission by means of the App Tracking Transparency APIs. Tracking is defined by Apple’s policies and guidelines, including at developer.apple.com/app-store/user-privacy-and-data-use.
s. Incentives. Apple may at its discretion offer incentives, including credits, promotions, discounts, or other monetary or non-monetary offerings, to You or other eligible users of the Services in connection with the Service. Your acceptance or use of any such incentives is subject to both these Terms of Service and the Apple Advertising Services Promotional Credits Terms and Conditions (available at searchads.apple.com/promo-terms and/or ads.apple.com/cn/promo-terms and incorporated into these Terms of Service by reference). You acknowledge and agree that the provision or use of the Services is subject to and may be affected by such incentives, including with respect to cost or price determined through auctions or other pricing mechanisms.
7. Payment for Services.
a. As consideration for the Services, You agree to pay Apple as billed, invoiced, or charged to You or Your payment method, for all the charges, costs, and fees associated with all Campaigns that You purchase or implement through the Services, net of any discounts or promotions offered to You by Apple, and any additional amounts (including any taxes and late fees, as applicable) that may be accrued by or in connection with Your Ad Content, Campaigns, Your use of the Services, or Your Account. You represent, warrant, and agree that (I) all applicable payment methods associated with Your Account or Your use of the Services, including but not limited to credit card, debit card, bank, e-wallet, and auto-debit accounts shall be validly authorized for such use by You under all applicable laws, (II) if You associate or use a payment method held by Your authorized representative, if required by applicable law, You shall have provided valid authorization to or have entered into a valid agreement with Your representative for such use, including for appropriate reimbursements, and can and shall provide validation of such authorization or agreement upon request, (III) as between the Parties, You are solely responsible for securing, ensuring, and validating the authorizations specified herein, and (IV) irrespective of the payment method used, You bear full responsibility for all payments due in connection with Your Ad Content, Campaigns, Your use of the Services, or Your Account. You are responsible for the timely payment of all fees and for providing Apple with a valid payment method for all fees. You agree that Apple may charge Your payment method at any time after any portion of the Services are actually delivered.
b. All payment and reporting related to the Services will be denominated in the currency that You select within Your Account or otherwise in connection with Your use of the Services. However, Apple shall not be required to support more than one currency per account regardless of the location where such Services are provided. You acknowledge and agree that Apple may not be able to make available for invoicing or payment a currency that You prefer or use in the ordinary course of Your business, or a currency that is available in or mandated by the jurisdiction in which You reside or are located or to which You are subject. You expressly agree to and confirm Your ability to transact lawfully with Apple under these Terms of Service pursuant to Your applicable jurisdiction’s requirements and restrictions relating to currencies and payments, including those relating to payment transfers (including cross-border payment transfers), credit card payments, and payments on extensions of credit, using the currency or currencies Apple makes available to You.
c. Your use of the Services requires the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS, AND THAT YOU ARE AUTHORIZED TO ENTER INTO SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON OR USING THE SERVICES. Apple reserves the right to close Your Account or, unless otherwise prohibited by the Other Agreements, any other Apple account and require an alternative form of payment if a payment method is fraudulently obtained or used in connection with the Services. In order to access and retain Your electronic records, You may be required to have certain hardware and software, which are Your sole responsibility.
d. You acknowledge and agree that, unless otherwise specified herein or in writing: (I) the applicable entity listed in the Apple Advertising Services Countries and Regions Specific Terms is authorized to provide the Services to You; (II) the applicable entity providing the Services may designate an affiliate that is controlled by, in common control with, or in control of such entity as the payee to collect payments for the Services provided and invoiced; (III) the designated payee is authorized to and may collect payment from You on behalf of itself and the applicable entity; (IV) invoices or other forms of billing for the Services issued by one or more of the entities may direct You to submit payments to the designated payee or to another affiliate; and (V) You shall make all such payments to the designated payee as directed.
e. Taxes. Apple may invoice You for any applicable taxes, levies, duties, costs, charges, deductions, or any charges of equivalent effect, as imposed by any tax authority on or in respect of the Services provided by Apple to You under these Terms of Service, including, without limitation, sales tax, use tax, value added tax (“VAT”), goods and services tax (“GST”), and consumption tax. Apple shall determine, collect, and remit such applicable taxes to the competent tax authorities, and You agree to pay such taxes as invoiced by Apple. In the event that any tax authority imposes any tax compliance responsibility on You including, without limitation, reverse charge accounting, self accounting, and reporting, You shall take full responsibility for such compliance obligations. In the event that any amount payable by You to Apple under these Terms of Service is subject to any applicable withholding or similar taxes imposed by any tax authority (“Withholding Tax”) and that You are required to collect and remit such Withholding Tax, You agree that the full amount of such tax shall be solely for Your account and shall not reduce the amount payable to Apple. You shall gross up the relevant payment, so that after You deduct and remit the applicable Withholding Tax, You shall pay and Apple shall receive the same amount as originally invoiced. You shall bear full responsibility for such compliance obligations. Notwithstanding the foregoing, and in addition to any instructions, requests, requirements, or specifications communicated by Apple from time to time, You agree to comply with the Tax Obligations and Requirements available at searchads.apple.com/terms and/or ads.apple.com/cn/terms, which are incorporated into these Terms of Service by reference.
f. You agree to notify Apple via email of any invoice dispute within thirty (30) days from the date of receipt of the invoice (the “Invoice Dispute Period”). Invoice disputes shall be emailed to firstname.lastname@example.org and shall include detailed reason(s) for the dispute. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU WAIVE ALL CLAIMS RELATING TO AN INVOICE, INCLUDING THE SERVICES AND FEES REFERENCED THEREIN, UNLESS CLAIMED OR ASSERTED WITHIN THE INVOICE DISPUTE PERIOD. FOR THE AVOIDANCE OF DOUBT, IF YOU FAIL TO DISPUTE AN INVOICE WITHIN THE INVOICE DISPUTE PERIOD, YOU ACKNOWLEDGE THAT THE INVOICE WILL BE CONSIDERED PAYABLE IN FULL AND “AS IS.” In the event that You contract with a third party to process invoices on Your behalf, You will use commercially reasonable efforts to provide such third party the requisite information and/or authorization to facilitate timely payment to Apple. Furthermore, You agree that Your obligation to make timely payments and/or to notify Apple of invoice disputes in a timely manner will neither be lessened nor excused due to the actions of such third party.
g. TO THE FULLEST EXTENT PERMITTED BY LAW AND WITHOUT LIMITING YOUR RIGHTS AS SPECIFIED IN SECTION 9(A), YOU WAIVE ALL CLAIMS RELATING TO (I) THE SERVICES AND/OR (II) FEES UNLESS CLAIMED OR ASSERTED WITHIN SIXTY (60) DAYS AFTER THE COMPLETION OF THE CAMPAIGN ASSOCIATED WITH SUCH SERVICES OR FEES.
h. You acknowledge and agree, unless otherwise specified by Apple, that charges, costs, and fees are based solely on the Reporting Metrics associated with a Campaign.
i. At Apple’s option and discretion, Apple may elect to offer or may extend to You credit relating to the Services subject to the following terms and conditions:
I. Payment terms for all amounts due to Apple will be due forty five (45) days from the date of Apple’s invoice, except as may otherwise be required by Apple in writing or agreed in writing between the Parties. Late payments might be subject to an interest charge computed daily for each day that the payment is late. The interest charge shall be calculated from a base interest rate (“Base Rate”) plus the lesser of one percent (1%) or the maximum amount allowed by applicable law. The Base Rate will be based on any evolving or then-prevailing market convention for determining a benchmark rate in the country of payment at such time. If such rate is not publicly quoted or otherwise reasonably determinable by Apple, then the Base Rate shall be based on the Central Bank policy rate or single consolidated equivalent in the country of payment at such time. If the Base Rate is negative, it shall be deemed zero per cent (0%). If payment is required to be made on a basis other than forty five (45) days from the date of Apple’s invoice, then such modified terms will become the ordinary course of business and dealing between You and Apple.
II. The line of credit will limit the aggregate amount of credit that may be extended at any time to You under these Terms of Service, any other agreement between You and Apple, or for any other sales or extensions of credit of any kind by Apple to You.
III. Apple may extend, revise, or revoke credit to You at Apple’s discretion for any reason at any time, with or without notice to You. In addition to any other remedies set forth in these Terms of Service, Apple may, without notice, take remedial action, including but not limited to suspending or terminating Your Campaign(s), Your Account(s), or Your use of the Services whenever the outstanding balance owed by You to Apple exceeds the line of credit.
IV. As a condition for receiving or continuing to receive credit, You may be required to submit a credit application provided by Apple and provide to Apple: (1) financial information, statements, and reports, such as balance sheets, cash flow, and profit and loss statements, as well as auditors’ report and notes to financials, if available, and any other such information or material that is routinely provided to any other vendor, lender, or creditor to support extensions of credit; (2) such other financial information as may be reasonably requested by Apple; and (3) likely present value of collateral or credit enhancement, including but not limited to, bank guarantees, standby letters of credit, corporate guarantees, bankers’ acceptance drafts, and personal guarantees. You further acknowledge and agree that in considering You for an extension or continuation of credit, Apple may review Your creditworthiness, including through third party services.
j. Invoices shall be based on actual delivery during a calendar month billing cycle and the number of invoices may vary per Campaign or such other arrangement as agreed to by the Parties in writing. For the avoidance of doubt, Apple shall generate invoices using Apple’s Reporting Metrics as the sole binding measurement of Apple’s performance on delivery of any Services governed hereunder.
k. In the event that You fail to make timely payment or otherwise breach these Terms of Service or any warranties set forth herein, You will be responsible for all expenses (including attorneys’ fees and costs) incurred by Apple in collecting such amounts. Without prejudice to Apple’s rights of termination, suspension, or modification under Section 13, in the event that You breach these Terms of Service, including by failure to comply with any payment or credit terms and conditions, Apple reserves the right to immediately: (I) terminate or suspend performance of its obligations under these Terms of Service, (II) terminate, suspend, modify, or restrict Your access to the Services, and/or (III) declare all sums owed to Apple immediately due and payable.
l. You acknowledge and agree that any payment method information that You provide to Apple may be shared by Apple with companies who work on Apple’s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Apple, and servicing Your account. You agree that Apple has the right, without liability to You, to disclose any payment method information to law enforcement authorities, government officials, and/or a third party, as Apple believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of these Terms of Service (including, without limitation, Apple’s right to cooperate with any legal process relating to Your use of the Services and/or a third-party claim that Your use of the Services is unlawful and/or infringes such third party’s rights).
8. Intellectual Property.
a. Acknowledgement of Ownership. You agree that the Services contain proprietary information and material that is owned by Apple and/or its licensors or other third parties, and is protected by applicable intellectual property and other laws, and that You will not use such proprietary information or materials in any way whatsoever except for use of the Services in compliance with these Terms of Service. Except as expressly set forth herein, and except to the extent that applicable laws prevent Apple from restraining You from doing so, no portion of the Services may be reproduced in any form or by any means without Apple’s express written consent.
b. Copyrights. All copyrights in and to the Services are owned by Apple and/or its licensors.
c. Trademarks. Apple, the Apple logo, App Store, iTunes, Apple Ads, Apple Search Ads, and other Apple trademarks, service marks, graphics, and logos used in connection with the Services are trademarks or registered trademarks of Apple Inc. in the U.S. and/or other countries. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.
9. Disclaimer of Warranties; Limitation of Liability.
a. YOU MAY HAVE NON-EXCLUDABLE RIGHTS OR REMEDIES UNDER LAWS IN YOUR JURISDICTION. NOTHING IN THESE TERMS OF SERVICE ARE INTENDED TO OR HAS THE EFFECT OF LIMITING, MODIFYING, OR EXCLUDING ANY LIABILITY WHICH CANNOT BE SO LIMITED, MODIFIED OR EXCLUDED BY LAW. ANY AND ALL LIMITATIONS OR EXCLUSIONS OF APPLE'S LIABILITY IN THESE TERMS OF SERVICE SHALL APPLY ONLY TO THE MAXIMUM EXTENT SUCH LIMITATIONS ARE PERMITTED BY LAW.
b. APPLE DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT THE SERVICES OR ANY FEATURES AND FUNCTIONALITIES OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME APPLE MAY REMOVE THE SERVICES (OR PARTICULAR PRODUCTS OR SERVICES THEREIN) FOR INDEFINITE PERIODS OF TIME, OR CEASE TO OFFER THE SERVICES IN THEIR ENTIRETY OR IN PART, AT ANY TIME, WHERE NECESSARY TO PROTECT APPLE'S INTERESTS.
c. APPLE DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT THE SERVICES, ANY FEATURES AND FUNCTIONALITIES OF THE SERVICES, OR YOUR PARTICULAR AD CONTENT IS AVAILABLE IN ALL LOCATIONS, AND, TO THE EXTENT THAT IT IS AVAILABLE, THAT ALL LANGUAGES USED IN SUCH LOCATIONS WILL BE AVAILABLE, AND APPLE MAKES NO REPRESENTATION THAT THE SERVICES OR YOUR AD CONTENT IS APPROPRIATE OR PERMISSIBLE FOR YOUR USE IN A PARTICULAR LOCATION.
d. YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES AND ANY FEATURES AND FUNCTIONALITIES OF THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TIMELINESS, TITLE, AND NON-INFRINGEMENT. YOU UNDERSTAND AND AGREE THAT PRICING FOR THE SERVICES MAY BE BASED IN WHOLE OR IN PART ON AN AUCTION MODEL, WHICH MAY VARY BASED ON NUMEROUS FACTORS, INCLUDING, WITHOUT LIMITATION, PROPRIETARY ALGORITHMS USED BY APPLE.
e. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE OR YOUR USE OF OR ACCESS TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, FOR ANY ERRORS OR OMISSIONS IN ANY PRODUCT, SERVICE, FEATURE, OR FUNCTIONALITY, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY PRODUCT, SERVICE, FEATURE, OR FUNCTIONALITY MADE AVAILABLE VIA THE SERVICES, EVEN IF ADVISED OF THEIR POSSIBILITY, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY, OR OTHERWISE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OR ANY REMEDY, EXCEPT FOR SUCH DAMAGES CAUSED SOLELY BY APPLE’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. IN NO EVENT SHALL APPLE’S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED UNDER APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FEES ACTUALLY PAID OR PAYABLE TO APPLE UNDER THESE TERMS OF SERVICE.
f. APPLE DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE FREE FROM NETWORK FAILURES, LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION.
g. UNLESS OTHERWISE AGREED BY THE PARTIES IN WRITING, FOR CAMPAIGNS THAT HAVE AGREED UPON DELIVERY METRICS (I.E., NOT PERFORMANCE-BASED ADVERTISING), IN THE EVENT YOUR CAMPAIGN UNDERDELIVERS ANY AGREED UPON METRICS IN ANY RESPECT, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE LIMITED TO EXTENTION OF THE CAMPAIGN OR CONTINUATION OF THE CAMPAIGN AT A LATER TIME IN A COMPARABLE OFFERING FOR SIMILAR VALUE, IN APPLE’S SOLE DISCRETION, UNTIL THE AGREED UPON METRICS ARE DELIVERED OR, IN APPLE’S SOLE DISCRETION, A PRO-RATA REFUND FOR THE UNDELIVERED PORTION OF THE CAMPAIGN. FOR THE AVOIDANCE OF DOUBT, THIS REMEDY SHALL NOT APPLY TO ANY CAMPAIGN FOR WHICH THERE IS NO EXPLICIT AGREEMENT BETWEEN THE PARTIES ON SPECIFIC METRICS FOR DELIVERY, SUCH AS CAMPAIGNS DELIVERED THROUGH AUCTION-BASED MECHANISMS; APPLE DOES NOT GUARANTEE THAT ANY SUCH CAMPAIGNS WILL BE DELIVERED IN WHOLE OR IN PART.
10. Indemnity. BY USING THE SERVICES, YOU AGREE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS, LOSSES, LIABILITIES, EXPENSES, COSTS, FEES, FINES, OR OTHER TYPES OF DAMAGES, INCLUDING WITHOUT LIMITATION, ATTORNEYS’ FEES AND ALL COSTS RELATED TO ENFORCING THIS CLAUSE, ARISING OUT OF OR RELATING TO ANY OF THE FOLLOWING: (A) YOUR BREACH OF THESE TERMS OF SERVICE, INCLUDING ANY REPRESENTATION, WARRANTY, OR COVENANT MADE BY YOU HEREIN; (B) YOUR IMPROPER, UNAUTHORIZED, OR UNLAWFUL USE OF THE SERVICES; (C) ANY CLAIMS THAT YOUR AD CONTENT, ADVERTISER DATA, BUSINESS USER DATA, OR TARGETING USED IN CONNECTION WITH THE SERVICES (I) MISAPPROPRIATED, VIOLATED, OR INFRINGED ANY THIRD PARTY’S PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET, MASK WORK, OR ANY OTHER INTELLECTUAL PROPERTY OR PROPRIETARY RIGHT; (II) DEFAMED, OR BREACHED THE CONFIDENTIALITY OR VIOLATED THE PRIVACY OF ANOTHER; (III) CONSTITUTED FALSE, DECEPTIVE, UNFAIR, ABUSIVE ACTS OR PRACTICES, INCLUDING RELATING TO ADVERTISING OR SALES; OR (IV) FAILED TO COMPLY WITH ANY APPLICABLE LAW OR REGULATION.
11. Notices. Any notices relating to these Terms of Service shall be in writing. Notices will be deemed given by Apple when sent to You at the email address or mailing address You provide to Apple in connection with the Services. You agree to regularly check Your email address and Your mailing address for notices from Apple to You, to promptly review all such notices, and to immediately notify Apple if You no longer have access to the email address or the mailing address You provided to Apple in connection with the Services. Unless otherwise specified herein, all notices to Apple relating to these Terms of Service will be deemed given: (a) when delivered personally, (b) three business days after having been sent by commercial overnight carrier with written proof of delivery, or (c) five business days after having been sent by first class or certified mail, postage prepaid, by the foregoing methods stated in (a), (b), and (c), to: Apple Inc., Legal (attn: Advertising Platforms Legal), One Apple Park Way, Cupertino, CA 95014, United States. A Party may change its email or mailing address by giving the other Party written notice as described above.
12. Modification or Amendment of Terms of Service. Apple reserves the right, at its discretion, to modify or amend these Terms of Service at any time. Upon such modification, the modified Terms of Service shall be available at searchads.apple.com/terms-of-service and/or ads.apple.com/cn/terms-of-service/english, or at another accessible location as notified by Apple, and shall become effective upon notice to You in accordance with Section 11 above, or at a later time as specified in such notice. You agree to regularly visit searchads.apple.com/terms-of-service and/or ads.apple.com/cn/terms-of-service/english, or another accessible location as notified by Apple, and to review the Terms of Service, including for any modifications, which may be indicated by updates to the Effective Date stated at the top of the Terms of Service. You acknowledge and agree that regularly reviewing these Terms of Service for modifications is Your responsibility. IF YOU DO NOT AGREE TO ANY MODIFICATION TO THE TERMS OF SERVICE, YOU SHALL IMMEDIATELY STOP ALL ACCESS TO AND USE OF THE SERVICES. UNLESS OTHERWISE COMMUNICATED TO YOU BY APPLE, YOUR CONTINUED USE OF THE SERVICES AFTER ANY MODIFICATION TO THE TERMS OF SERVICE SHALL BE DEEMED AS YOUR ACCEPTANCE OF THE TERMS OF SERVICE AS MODIFIED.
13. Termination. Either Party, in its sole discretion, may terminate these Terms of Service at any time upon notice without cause; provided, however, that any continued use of the Services by Content Provider after such notice of termination will be subject to the then-current Terms of Service. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in these Terms of Service or as required by applicable law: (a) all rights, licenses, consents, and authorizations granted by either Party to the other hereunder will immediately terminate; (b) You will cease all use of the Services; and (c) all fees owed to Apple under these Terms of Service will become immediately due and payable. THE RIGHTS AND OBLIGATIONS SET FORTH IN SECTION 6(o), SECTION 6(p), SECTION 6(r), SECTION 7(a), SECTION 7(g), AND SECTIONS 8 THROUGH 15 WILL SURVIVE THE EXPIRATION OR TERMINATION OF THESE TERMS OF SERVICE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS OF SERVICE, APPLE MAY, IN ITS SOLE DISCRETION, DIRECTLY OR INDIRECTLY, IMMEDIATELY AND WITHOUT ADVANCE NOTICE SUSPEND, TERMINATE, OR OTHERWISE DENY YOUR ACCESS TO OR USE OF ALL OR ANY PART OF THE SERVICES. This Section 13 does not limit any of Apple’s other rights or remedies, whether at law, in equity, or under these Terms of Service.
14. Governing Law. YOU EXPRESSLY AGREE THAT THE LAWS OF THE STATE OF CALIFORNIA, EXCLUDING ITS CONFLICTS OF LAW RULES, GOVERN THESE TERMS OF SERVICE AND YOUR USE OF THE SERVICES, AND THAT THE EXCLUSIVE JURISDICTION FOR ANY PROCEEDING RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE THE STATE AND FEDERAL COURTS WITHIN THE NORTHERN DISTRICT OF CALIFORNIA. YOU HEREBY WAIVE THE RIGHT TO OBJECT TO THE FOREGOING CHOICE OF LAW, PERSONAL JURISDICTION, OR VENUE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IF YOU RESIDE OR ARE LOCATED IN MAINLAND CHINA OR ARE SUBJECT TO THE JURISDICTION THEREOF, YOU FURTHER AGREE THAT ANY DISPUTES ARISING FROM OR IN CONNECTION WITH THESE TERMS OF SERVICE OR YOUR USE OF THE SERVICES BE SUBMITTED TO THE CHINA INTERNATIONAL ECONOMIC AND TRADE ARBITRATION COMMISSION (CIETAC) IN BEIJING FOR ARBITRATION WHICH SHALL BE CONDUCTED IN ACCORDANCE WITH THE CIETAC’S ARBITRATION RULES IN EFFECT AT THE TIME OF APPLYING FOR ARBITRATION, AS WELL AS THE FOLLOWING TERMS AND CONDITIONS: THE ARBITRAL AWARD SHALL BE FINAL AND BINDING UPON BOTH PARTIES. EACH PARTY SHALL APPOINT ONE ARBITRATOR. THE THIRD ARBITRATOR, WHO SHALL ACT AS PRESIDING ARBITRATOR, SHALL BE SELECTED JOINTLY BY THE TWO ARBITRATORS APPOINTED BY THE PARTIES. IF THE PRESIDING ARBITRATOR CANNOT BE CHOSEN WITHIN 30 DAYS AFTER THE SECOND ARBITRATOR IS APPOINTED, THE CIETAC CHAIRMAN IS AUTHORIZED TO APPOINT ONE. THE PRESIDING ARBITRATOR SHALL NOT BE AND SHALL NOT HAVE BEEN A NATIONAL OF EITHER THE PEOPLE’S REPUBLIC OF CHINA OR THE UNITED STATES. HOWEVER, AN INDIVIDUAL WHO HOLDS A HONG KONG PASSPORT OR HAS THE RIGHT OF ABODE IN HONG KONG – BUT HAS NEVER BEEN A NATIONAL OF THE PEOPLE’S REPUBLIC OF CHINA BEFORE 1 JULY 1997 – SHALL NOT BE REGARDED AS A NATIONAL OF THE PEOPLE’S REPUBLIC OF CHINA UNLESS OTHERWISE AGREED BY THE PARTIES. THE PARTIES FURTHER AGREE THAT ALL ARBITRATORS MAY BE APPOINTED FROM OUTSIDE CIETAC’S PANEL OF ARBITRATORS AS PROVIDED FOR UNDER THE CIETAC’S ARBITRATION RULES IN EFFECT AT THE TIME OF APPLYING FOR ARBITRATION. THE PLACE OF THE ARBITRATION SHALL BE BEIJING, PRC. THE LANGUAGE OF THE ARBITRATION SHALL BE ENGLISH. IN ADDITION TO THE CIETAC RULES, THE PARTIES AGREE THAT THE ARBITRATION SHALL BE CONDUCTED ACCORDING TO THE IBA RULES ON THE TAKING OF EVIDENCE IN INTERNATIONAL ARBITRATION. THE PARTIES SHALL KEEP CONFIDENTIAL THE FACT OF ANY ARBITRATION AND ALL AWARDS IN THE ARBITRATION, TOGETHER WITH ALL MATERIALS IN THE PROCEEDINGS CREATED FOR THE PURPOSE OF THE ARBITRATION AND ALL OTHER DOCUMENTS PRODUCED BY ANOTHER PARTY IN THE PROCEEDINGS NOT OTHERWISE IN THE PUBLIC DOMAIN, SAVE AND TO THE EXTENT THAT DISCLOSURE MAY BE REQUIRED OF A PARTY BY LEGAL DUTY, TO PROTECT OR PURSUE A LEGAL RIGHT OR TO ENFORCE OR CHALLENGE AN AWARD IN LEGAL PROCEEDINGS BEFORE A COURT OR OTHER JUDICIAL AUTHORITY. THE ARBITRATORS SHALL AWARD TO THE PREVAILING PARTY, IF ANY, AS DETERMINED BY THE ARBITRATORS, ITS COSTS AND EXPENSES, INCLUDING ITS ATTORNEYS’ FEES. THE PREVAILING PARTY SHALL ALSO BE ENTITLED TO ITS ATTORNEYS’ FEES AND COSTS IN ANY ACTION TO CONFIRM AND/OR ENFORCE ANY ARBITRAL AWARD IN ANY JUDICIAL PROCEEDINGS.
15. Miscellaneous. These Terms of Service, including all Attachments hereto, constitute the entire agreement between You and Apple and govern Your use of the Services, superseding all prior agreements between You and Apple except as set forth in writing in the Other Agreements. You may not assign these Terms of Service, including, without limitation, by operation of law or merger, without Apple’s prior written approval, and any attempt to assign these Terms of Service without such prior written approval is void. Apple will review any requests for assignment in a timely manner. If any part of these Terms of Service is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the Parties, and the remaining portions shall remain in full force and effect. Apple’s failure to enforce any right or provisions in these Terms of Service will not constitute a waiver of such provision, or any other provision of these Terms of Service. Apple will not be responsible for failures to fulfill any obligations due to causes beyond its control. These Terms of Service are not to the benefit of any third parties.