Personagraph ANALYTICSTM, Personagraph ENGAGE & Personagraph Monetize software development kit and services - Terms of Service
READ THESE TERMS OF SERVICE CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE OR SERVICES.
These Terms of Service between you and Personagraph Corporation ("Company", "we" "our", "us") describes the terms and conditions associated with your use of any Personagraph Analytics, Personagraph Engage & Personagraph Monetize Software Development Kit or other Personagraph Analytics, Personagraph Engage, and/or Personagraph Monetize Software or Services that post this Agreement, and any associated documentation, developer guide, software code, APIs, icons or other materials made available by Company in connection with the preceding (collectively, the "Software") and the Personagraph Analytics, Personagraph Engage, and Personagraph Monetize services described in Section 3.1 of this Agreement (the "Services").
BY CHECKING THE "I AGREE" CHECKBOX WHEN DOWNLOADING THE SOFTWARE, OR BY INSTALLING, ACCESSING OR OTHERWISE USING THE SOFTWARE OR SERVICES, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THE TERMS AND CONDITIONS DESCRIBED HEREIN, THE TERMS OF THE LICENSES GRANTED, AND THE TERMS OF ANY OTHER AGREEMENTS, POLICIES, AND GUIDELINES INCORPORATED BY REFERENCE (COLLECTIVELY, THE "AGREEMENT").
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, IN WHICH CASE THE TERMS "YOU" OR "YOUR" WILL REFER TO SUCH ENTITY. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, ACCESS OR USE THE SOFTWARE OR USE THE SERVICES. COMPANY MAY MODIFY THIS AGREEMENT FROM TIME TO TIME IN ITS SOLE AND ABSOLUTE DISCRETION, AND YOUR CONTINUED USE OF THE SOFTWARE OR SERVICES AFTER ANY MODIFICATION OF THE AGREEMENT WILL CONSTITUTE ACCEPTANCE OF THE MODIFIED AGREEMENT.
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE DISPUTE RESOLUTION PROVISION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND COMPANY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR ARBITRATION.
1. License Grant; Ownership.
1.1. Software and Services Ownership. You agree that Company or other third parties own all legal right, title and interest in and to the Software and Services, including without limitation any and all rights under applicable patents, copyrights, trade dress, trade secrets and trademark law, whether or not perfected or registered throughout the world, as well as any and all other intellectual property or proprietary rights ("Intellectual Property Rights"). Company reserves all rights, title and interests in the Software not otherwise expressly granted to you. Nothing in this Agreement is intended to grant you any additional rights, other than as provided herein, to any of Company's Intellectual Property Rights, trademarks, service marks, logos, trade names, or other trade dress without Company's prior written consent.
1.2. Limited License Grant to You. Subject to the terms of this Agreement and your compliance with the terms of this Agreement, Company grants you a limited, worldwide, royalty-free, revocable, non-assignable, non-transferable, non-sublicensable and non-exclusive license to: (a) install, use and copy the Software solely to integrate the Software into your mobile client-based applications or your website ("Authorized Applications"); and (b) use the Services.
1.3. End-User Content and Information You Provide. As between Company and you, you remain the owner of any information you provide to us with respect to this Agreement, including any information regarding end-users of your website(s) and application(s) ("End-Users") collected by you online or offline, and information we collect from End-Users of your Authorized Applications through the Software or Services ("End-User Content"), including but not limited to, personal information, device identifiers, click information, and application names; but you acknowledge and agree that Company must have a license from you in order to collect and use such information and End-User Content. Accordingly, you grant to Company an unrestricted, worldwide, irrevocable, perpetual, transferable and royalty-free license (but not obligation) to host, copy, distribute, display, create derivative works, perform, modify, translate, store, and use, all or any portion of the information you provide to us with respect to this Agreement, including without limitation End-User Content, for the purpose of providing the Software and Services to you, improving the Software and Services and for our internal business purposes. Company will not commingle the individualized End-User Content collected through your Authorized Applications with data collected elsewhere, but you agree that Company may use and share End-User Content collected on your behalf and any other information you provide while using the Services at an anonymous and/or aggregate level that does not identify you or any End-User individually. You acknowledge that any competitive analysis provided as part of the Services is based solely on information gathered about End Users through your Authorized Applications and is not based upon information gathered through any third party's Authorized Applications.
1.4. Modifications and Discontinuance of Software and Services. You acknowledge that the Software or Services, in whole or in part, may be modified, supplemented, replaced or discontinued, in Company's sole and absolute discretion, at any time, and without prior notice to you, and that future versions of the Software may be incompatible with applications utilizing previous versions of the Software. You agree that you will not deface, remove, obscure, or alter any proprietary rights notices (including patent, copyright and trademark notices) that are or may be affixed to or utilized by or within the Software.
2. Obligations and Restrictions
2.1. Limitations on Use. Except to the extent permitted by this Agreement, you may not: (a) copy, modify, adapt, revise, redistribute, decompile, reverse engineer, disassemble, or create derivative works of the Software or Services or any part of thereof; or (b) resell, lease, rent, assign, sublicense or otherwise transfer the rights granted to you by this Agreement. You also agree that you will not use the Software or Services in any way that could harm Company, the Software or Services, or negatively impact anyone else's use of such Software or Services. You will not use the Software or Services in violation of, or to violate, any applicable laws or regulations (including any laws regarding the protection and safeguarding of personal information and the export of data or software to and from the United States or other relevant countries). You shall not use the Software or Services to engage in any activity, including development or distribution of applications, that interfere, disrupt, damage, or accesses in an unauthorized manner the servers, databases, networks, systems or other properties or services of any third party including, but not limited to, that of Company or any mobile communications carrier.
2.2. Third Party Applications. In the event you incorporate the Software to modify applications developed by a third party or that access data, content or resources provided by a third party other than Company, you agree that Company is not responsible for any third party applications, including but not limited to applications, data, content, code or resources provided in connection with the applications (collectively, "Third Party Apps"). You understand that any such Third Party Apps are the sole responsibility of you and the originating party and that Company is not liable in any way for any loss or damage that you, your clients or your End-Users may experience as a result of the use or access of or to any Third Party Apps. Third Party Apps may be protected by separate intellectual property and other rights owned or licensed by the providers of those Third Party Apps or others, and you may not modify, rent, lease, loan, sell, distribute or create derivative works based on any such Third Party Apps (either in whole or in part) unless you have been specifically given a license to do so by the relevant owners or licensors.
2.3. Operating System Restrictions. You acknowledge and agree that various Integrated Development Environments ("IDEs"), APIs, other applicable software development kits (including, but not limited to those provided by or offered to develop applications to run on the Apple iOS or Google Android devices), as well as any applicable "App Store", may subject you and your development activities and any Authorized Application to additional terms and conditions, such as developer guidelines, distribution guides, interface guidelines and App Store clearance requirements (collectively, "Operating System Restrictions"). Any and all of these third party Operating Systems Restrictions may prohibit or prevent, in whole or in part, your otherwise Authorized Applications from being used by third parties or being distributed or marketed. Company is not responsible for any Operating System Restrictions and you are fully responsible for compliance with all applicable Operating System Restrictions.
2.4. Advertising Exchange Restrictions. You may be able to utilize the Software and Services to offer advertising space within your Authorized Application for sale to advertisers and to furnish potential advertisers with demographic information and preference inferences regarding the End-User to whom a particular advertisement would be targeted ("Ad Space Services"). In the event that you elect to use such Ad Space Services, invitations to bid on your advertising space will be routed to one (1) or more advertising exchanges or similar third parties (each an "Ad Exchange"). In some circumstances, and as elected by the you, Company will have a direct contractual relationship with the applicable Ad Exchange ("Company-facing Ad Exchange"), while in others Company will rely on your direct contractual relationship with the applicable Ad Exchange in order to sell advertising space within your Authorized Application ("Partner-facing Ad Exchange"). If you use the Ad Space Services to sell advertising space through a Partner-facing Ad Exchange, you agree that you are solely responsible for compliance with any terms and conditions imposed under your agreement with such Ad Exchange.
2.5. Privacy Policies, End-User Choices, Security Measures, and Procedures. You will employ reasonable measures, policies and procedures to protect the privacy and confidentiality of, and legal rights related to, any data stored, processed, accessed or transmitted by or using the Software or Services. If End-Users provide you with personal or sensitive information through any Authorized Application or otherwise, including, but not limited to, user names, passwords, addresses, contact information, mobile device identifiers, advertising identifiers, or information from which an individual may reasonably be identified, you must make the users aware, through appropriate and adequately clear privacy policies, that the information may be available to, collected by, disclosed by, or utilized by you or your Authorized Application, as applicable. If your application stores personal or sensitive information provided by End-Users, it must do so securely. If the End-User provides your Authorized Application with specific user account information, including but not limited to account information that grants or allows access to social media accounts or other sources of End-Users information of a descriptive or personal nature, your Authorized Application may only use that information when, and for the limited purposes for which, the End-Users has given you permission to do so. YOU AGREE THAT YOU WILL PROVIDE CLEAR AND CONSPICUOUS NOTICE TO END-USERS OF YOUR PRIVACY PRACTICES AND THAT YOUR AUTHORIZED APPLICATION COLLECTS, USES, SHARES AND STORES DATA REGARDING END-USERS, INCLUDING WITHOUT LIMITATION THE DATA COLLECTED BY THE SOFTWARE, AND THAT THIRD PARTIES MAY COLLECT THIS INFORMATION. IN ADDITION, YOU AGREE THAT YOU ARE RESPONSIBLE FOR OBTAINING THE APPROPRIATE RIGHTS FROM, AND CONSENT OF, ANY END-USERS WHO UTILIZE YOUR AUTHORIZED APPLICATIONS, IN CONNECTION WITH SUCH TRANSMISSION, STORAGE AND USE AND THE COLLECTION OF ANY INFORMATION FROM SUCH END-USERS. YOU UNDERSTAND THAT YOU MAY BE REQUIRED BY LAW OR CONTRACT TO OBTAIN USER CONSENT BEFORE COLLECTING CERTAIN DATA OR BEFORE COMBINING CERTAIN DATA (SUCH AS DEVICE IDENTIFIERS OR MOBILE IDENTIFIERS) WITH PERSONAL INFORMATION. YOU FURTHER UNDERSTAND THAT COMPANY MAY COMBINE THE INFORMATION COLLECTED, INCLUDING ANDROID ADVERTISING IDENTIFIERS, WITH PERSONAL INFORMATION AND OTHER INFORMATION ABOUT THE USER, IN ORDER TO BETTER UNDERSTAND AND TARGET THE USER, AND YOU AGREE THAT YOU WILL OBTAIN EXPLICIT USER CONSENT FROM USERS OF THE ANDROID PLATFORM FOR US TO DO SO. COMPANY RECOMMENDS THAT YOU OBTAIN OPT-IN CONSENT FROM END-USERS BEFORE COLLECTING ANY INFORMATION FROM THOSE END-USERS, AND YOU ACKNOWLEDGE AND AGREE THAT YOU ARE FULLY RESPONSIBLE FOR ANY FAILURE TO DO SO AND COMPANY WILL HAVE NO LIABILITY TO YOU OR ANY THIRD PARTY FOR YOUR FAILURE TO OBTAIN PROPER CONSENT FROM END USERS. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT WE MAY REQUIRE THAT END-USERS CONSENT TO THE COLLECTION OF CERTAIN INFORMATION CONNECTED TO THE SERVICES PRIOR TO THAT COLLECTION, OR THAT END-USERS HAVE THE OPPORTUNITY TO TURN OFF THE COLLECTION OF CERTAIN INFORMATION, CONNECTED TO THE SERVICES, WHETHER OR NOT REQUIRED BY LAW, AND YOU AGREE TO ABIDE BY OUR REQUIREMENTS IN THIS REGARD, INCLUDING, WITHOUT LIMITATION, INCLUDING WITHIN THE AUTHORIZED APPLICATION ANY OPT-OUT CONTROLS PROVIDED BY COMPANY, WHICH ALLOW END USERS TO OPT-IN OR OPT-OUT OF THE COLLECTION OF CERTAIN DATA OR THE USE OF CERTAIN DATA WHILE THEY USE THE AUTHORIZED APPLICATIONS.
YOU AGREE THAT, IF YOU UTILIZE FEATURES OF THE SOFTWARE OR SERVICES THAT ALLOW YOU TO COLLECT INFORMATION REGARDING THE IDENTITY AND USE OF THIRD-PARTY APPLICATIONS ON AN END-USER'S DEVICE OR END-USER'S LOCATION, YOUR PRIVACY NOTICE TO END-USERS WILL EXPRESSLY REFERENCE SUCH COLLECTION AND YOU WILL OBTAIN CONSENT FROM END-USERS TO COLLECT SUCH DATA AS WELL AS INFORMATION REGARDING COMPANY'S OPT-OUT THROUGH WHICH END-USERS MAY OPT-OUT OF THE COLLECTION OF DATA THROUGH AUTHORIZED APPLICATIONS BY COMPANY. YOU AGREE THAT IF YOU UTILIZE AD SPACE SERVICES YOUR PRIVACY NOTICE TO END-USERS WILL DISCLOSE YOUR USE OF THESE TYPES OF SERVICES AND THAT THIRD PARTIES, INCLUDING COMPANY, PROVIDE THESE SERVICES; YOU FURTHER AGREE TO PROVIDE END-USERS WITH NOTICE OF AND ACCESS TO COMPANY'S OPT-OUT THROUGH WHICH END-USERS MAY OPT-OUT OF THE USE OF END-USER DATA FOR TARGETED ADVERTISING.
2.6. COPPA and Children. You agree your use of any Services will comply fully with both the Children's Online Privacy Protection Act ("COPPA") and the FTC's most current COPPA regulations.
2.7. Compliance with Laws. With respect to your activities related to this Agreement, including without limitation, the use of the Software or Services, the collection and disclosure of information related to End-Users and the Software and Services, communication with End-Users through the Software and Services, and use of the Software and Services to facilitate or provide information in connection with the sale and service of advertising within your Authorized Application, you shall comply with any and all applicable local, state, federal, and international laws, regulations or rules, including without limitation, any laws regarding the protection, privacy or safeguarding of personal information and laws concerning the export of data or software to and from the United States or other relevant countries.
2.8. Responsibility for Your and Your End-User's Acts and Omissions. Other than as expressly provided in this Agreement, you are solely responsible for, and Company has no responsibility or liability to you or to any third party for, any data, content, or resources that you or any End-Users of an Authorized Application creates, transmits, discloses or displays. You are also fully responsible, and Company is not responsible or liable for, your or your End-Users' acts or omissions (including without limitation any loss or damage which you or they may suffer related to this Agreement arising out of such acts or omissions). You agree that you are solely responsible for, and that Company has no responsibility or liability to you or to any third party for, any breach of your obligations under this Agreement, any applicable third party contract, or any applicable law or regulation.
2.9. Costs Related to the Software or Services. You agree that you are solely liable for all costs, fees, expenses or disclosures resulting from your or your End-Users' use of the Software or Services.
3. Personagraph Analytics, Personagraph Engage & Personagraph Monetize Services
3.1. Services. In conjunction with your integration and use of the Software with Authorized Applications, Company shall provide various backend services that collect, receive, store, process, analyze and make accessible information obtained or generated by us in connection with the Software, including a web interface that displays certain aggregate analytics and preference inferences concerning your Authorized Applications and End-Users of those applications, and which information may include, if elected, the underlying data collected from End-Users on your behalf. You may also elect to utilize additional Company services that allow you to communicate marketing messages to some or all End-Users of your Authorized Application using various methods, including without limitation, email and push or in-app notifications sent through such Authorized Application. You may further elect to utilize Company's additional Ad Space Services to offer available advertising space within your Authorized Application for sale and to furnish potential advertisers with demographic information and preference inferences regarding End-Users of your Authorized Application.
3.2. Registration for Services. You may remotely access, view and, if applicable, download analytics reports and information via a web-based interface using the Services, provided, however, in order to use such Services and register Authorized Applications you must create an account providing current and accurate information and complete the registration process provided by Company at partner.personagraph.com or such URL that Company may use, from time to time in its sole discretion. Upon registration, you will be required to provide your primary email and create a password. You understand that you are solely responsible for maintaining the confidentiality of any password or administrative ID associated with your account, and that you shall be solely and fully responsible for all activities that occur under your email address and password or through your account. Under no circumstances shall Company be responsible for any loss, damages, claim or other liability that may arise from the use of any password or account, whether authorized or not by you. You agree to immediately notify Company of any unauthorized use of your account or any other breach of security of which you become aware.
3.3. Support. Unless otherwise provided in this Agreement or another written agreement, Company is under no obligation to provide any technical or other support ("Support") for the Software or Services to you. If Company chooses to provide Support to you, your use of Support will be subject to and governed by Company's then current Support policies. In connection with the Support, you agree that Company has an unrestricted right to use information you provide to Company for its business purposes, including for product support and development.
4. Representations and Warranties. You represent and warrant to Company that: (i) you are the owner of each Authorized Application in connection with the use of the Services or that you are legally licensed or authorized to act on behalf of the actual owner of such application; (ii) you have all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder and to permit Company to perform any obligations or Services contemplated under this Agreement; (iii) your use of the Services, the delivery and performance by you of the terms and conditions under this Agreement, and, if applicable, Company's use of data received from your Authorized Applications does not and will not violate any applicable law, rule or regulation, conflict with or violate any agreement or other instrument with a third party applicable to you (including, without limitation, any agreement you have or make with a Partner-facing Ad Exchange) or otherwise infringe upon the rights of any third party; (iv) you have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations in connection with your use of the Software and Services and these Terms of Service (including, without limitation, any relevant data protection or privacy laws, including without limitation The CAN-SPAM Act of 2003 and COPPA); and (v) you will at all times comply with all applicable Company policies as provided to you.
5. DISCLAIMER OF WARRANTIES. YOUR USE OF THE SOFTWARE AND SERVICES IS AT YOUR SOLE RISK AND THE SOFTWARE AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND FROM COMPANY. YOUR USE OF THE SOFTWARE AND SERVICES, AND ANY INFORMATION DOWNLOADED, GENERATED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE OR SERVICES IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR SYSTEMS OR OTHER DEVICES, ANY LOSS OF DATA OR ANY DECISIONS THAT RESULTS FROM YOUR USE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHER, COMPANY MAKES NO, AND HAS NOT MADE, ANY REPRESENTATION OR WARRANTY THAT THE SOFTWARE OR SERVICES ARE OR WILL BE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR VIRUS-FREE OR THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU IN WHOLE OR IN PART.
6. Limitation of Liability. OTHER THAN UNDISPUTED SUMS OWED IN CONNECTION WITH A REVENUE SHARING ARRANGEMENT FOR THE AD SPACE SERVICES (AS DESCRIBED IN SECTION 11), IN NO EVENT WILL COMPANY, ITS SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY, "COMPANY PARTIES"), BE LIABLE TO YOU, ANY END-USER OR ANY OTHER PERSON OR ENTITY UNDER ANY THEORY FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME OR GOODWILL, PROFITS, LOST OR CORRUPTED DATA, OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS, ARISING OUT OF OR RELATED TO THIS AGREEMENT, USE OF THE SOFTWARE OR THE SERVICES, EVEN IN THE EVENT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE REASONABLY FORESEEABLE. THE COMPANY PARTIES' AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, AND YOUR USE OF THE SOFTWARE AND THE SERVICES, WILL NOT EXCEED TEN DOLLARS ($10) OR THE AMOUNT PAID BY YOU FOR USE OF THE SERVICES IN THE PRECEDING 12 MONTHS, WHICHEVER IS GREATER. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, THE COMPANY PARTIES' LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW. THE FOREGOING EXCLUSIONS, LIMITATIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED A BASIS FOR ENABLING COMPANY TO OFFER THE SERVICES AND THE SOFTWARE TO YOU.
7. Indemnification. You agree to protect, defend and hold harmless Company Parties from and against any and all claims, liabilities, losses, fines, penalties, regulatory actions or investigations, penalties, settlements, judgments, fees (including reasonable attorneys' fees and costs) costs and expenses arising or resulting from: (i) any information that you or anyone using your account, if applicable, may submit or access in the course of using the Services; (ii) your breach of any representation or warranty, or violation of the terms of this Agreement or any agreement with a third party applicable to you (including, without limitation, any Partner-facing Ad Exchange); (iii) any violation or failure by you or your partners in complying with all laws and regulations in connection with use of the Software, Services or this Agreement; (iv) the use of the Service by any End-Users or customers, advertising network, or other third party; and (v) Company's receipt of any data from you or your End-Users; and (vi) any act, error or omission of yours.
8. Publicity. You grant to Company the limited right to use your company name, trademarks, service marks and/or logos to identify you as a customer of Company and a user of its technology in its press releases, marketing publications or websites without notice or compensation to you. You shall not disparage Company or its Software, products or Services.
9. Term and Termination. You may terminate this Agreement at any time by providing thirty (30) days written notice to Company and uninstalling the Software and ending all use of the Software and Services. Company may, in its sole discretion, terminate this Agreement or suspend your access to Services at any time, without cause or prior written notice, and without liability to you, provided that, in the event of termination by Company, Company will refund to you any fees prepaid for Services not rendered as of the effective date of termination. Company will not refund any pre-paid fees as a result of your termination.
Upon termination by either party, each party will, if applicable, pay to the other party any undisputed sums for advertising space paid to that party by an Ad Exchange and held by that party for the other party pursuant to a revenue sharing arrangement for the Ad Space Services. Each receiving party will pay any such advertising revenue held by that party as of the effective date of termination to owed party within ninety (90) days of termination. For any such advertising revenue received following termination, the receiving party will remit such payments to the owed party on an on-going basis within ninety (90) days of the receiving party's actual receipt of such revenue from the applicable Ad Exchange. Company's payment of such advertising revenue will be subject to its rights of set-off described in Section 11.
Upon termination of this Agreement for any reason, all licenses granted hereunder to you are terminated, and you shall immediately cease all use of the Software and Services, and remove the Software from any Authorized Application. Except for the refunding of unused prepaid fees in the event of Company terminating this Agreement and for the payment of shared advertising revenue, as described above, Company will not be liable to you or any third party for termination of this Agreement (whether by Company or by you) or any termination or suspension of your use of the Services or Software. Upon any termination or suspension, you will have 30 days to download any data made available to you through the Services, and thereafter Company will have the right, but not the obligation, to delete the data collected through the Services, including without limitation, End-User Content.
You acknowledge that termination and/or monetary damages may not be a sufficient remedy if you breach this Agreement and that Company will be entitled, without waiving any other rights or remedies, to injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction in the event of a breach. You further agree that you will not be entitled to any injunctive or equitable relief for any reason resulting from any alleged violation or breach of this Agreement. This Agreement will continue to apply until terminated by either you or Company. The terms and conditions contained in this Agreement that by their sense and context are intended to survive the termination of this Agreement, including but not limited to all the terms set forth in sections 5, 6, 7, 8, 14, 15, 16, and 17 shall survive the termination of this Agreement will survive termination.
10. Export Restrictions. THE SOFTWARE IS SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL UNITED STATES, AND INTERNATIONAL EXPORT LAWS AND REGULATIONS, WHICH INCLUDE RESTRICTIONS ON DESTINATIONS, END-USERS AND END USE.
11. Fees & Compensation. Some Software and/or Services may be provided without charge, provided that Company may choose in the future to charge for use of such Software and/or Services. If Company in its sole discretion chooses to establish fees and payment terms for Software or Services provided without charge, Company will provide at least thirty (30) days' notice of the new pricing terms to you, and you may elect to stop using the Software and/or Services rather than incurring fees. Other Software and/or Services may require payment of fees for use, including, without limitation, fees imposed following an introductory period or fees imposed based upon the scope of your use of the Software and/or Services. Any such fees will be at the then-current rates and measured by the then-current metrics for the applicable Software or Services as posted on Company's website or as otherwise agreed to by the parties in a separately executed agreement.
Fees for some Software or Services may be based on or related to the number of End-Users who access your Authorized Application during a given billing period. For the purposes of calculating any such fee, each unique End-User who launches the Authorized Application at least once during the applicable billing period will be counted as one (1) End-User. If during any applicable billing period you exceed any limits imposed on your use of the Software or Service (e.g., the maximum number of monthly End-Users for the service level you have selected), you may be automatically upgraded to a higher tier of service (including, if applicable, upgrading your free account to a paid, fee-based account).
Unless otherwise agreed to by the parties in a separately executed agreement, fees (plus any applicable taxes) will be invoiced on a monthly basis for usage incurred in the previous billing period. All invoices are due within thirty (30) days of issuance. All fees are payable in U.S. dollars. Your right to use any fee-based Software and/or Service is conditioned upon your full and timely payment of incurred fees. Failure to timely pay fees may result in Company's termination of this Agreement pursuant to Section 9. Without limiting the foregoing, Company may impose late charges on any fees not received by the date due at a rate of one percent (1%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, until paid.
If you elect to use Company's Ad Space Services, you and Company may utilize a revenue-sharing arrangement in addition to or in place of a periodic or use-based fee. In such instances, you and Company will determine the applicable revenue-sharing arrangement (and, if applicable, fee structure). For advertising space sold through a Partner-facing Ad Exchange, you will collect all revenue from the applicable Ad Exchange. Following the close of each calendar month during which you receive payment from one (1) or more Partner-facing Ad Exchanges, you will remit to Company the agreed-upon percentage of such advertising revenue payable to Company along with copies of any accounting or other documentation provided to you by the Partner-facing Ad Exchange. For advertising space sold through a Company-facing Ad Exchange, Company will collect all revenue from the applicable Ad Exchange. Following the close of each calendar month during the term of this Agreement in which Company receives payment from one (1) or more Company-facing Ad Exchanges, Company will account for the agreed-upon percentage of such advertising revenue payable to you on its invoice to you for that billing period. Company will then set off any fees or other amounts owed to Company by you against the advertising revenue payable to you. Company will provide you with an invoice for your usage of the Software and Services as described above, along with any accounting or other documentation provided to Company by the Company-facing Ad Exchange. In the event that, after the set-off described above, Company remains in possession of money from a Company-facing Ad Exchange that is payable to you under the applicable revenue-sharing agreement, Company will remit such excess to you with its invoice via check or in another medium as agreed to by the parties. Company reserves the right to hold any payment until the cumulative amount owed to you totals at least fifty dollars ($50).
In the event that Company agrees to provide you with Ad Space Services pursuant to a revenue-sharing agreement, both you and Company agree to maintain such books and records as may be needed in order to accurately determine the amounts payable to the other party in accordance with such agreement. Each party shall have the right to review or audit the books and records of the other party relating to revenue sharing to verify the accuracy of any payment. Any such review or audit shall be conducted during the audited party's regular business hours at the place where such party's relevant records are regularly kept and upon reasonable prior notice (in no event fewer than thirty (30) days). The audit will be conducted solely at the auditing party's expense; provided that if the review or audit reveals an underpayment of more than ten percent (10%) of the amount actually owed, the audited party shall pay the reasonable costs of the review/audit in addition to the shortfall.
12. Developers on Behalf of Third Party Clients. If you are entering into this agreement as a developer to use the Software or Services on behalf of a third party client, or a third party client otherwise uses or gains access to the Software or Services through your Company account, whether or not you are authorized by Company to do so, then you represent and warrant that: (a) you are authorized to act on behalf of, and bind, and do hereby bind, the third party client to all obligations and restrictions that you have under this agreement; (b) Company may share with you the information that is specific to the third party client's Authorized Applications; and (c) you will not disclose the information collected or generated by the Software or Services to any other party without the third party client's consent. If you are entering into this Agreement as a developer to use the Software or Service on behalf of a third party client, "you" and "your" as used herein shall mean both you (the developer) and your third party client.
13. Modification; Notices. Company reserves the right, in its sole discretion, to modify or discontinue the Software or Services without notice. If you do not then agree to the changes, then you must stop using the Software and Services. Your continued use of the software or services after any modification of the agreement will constitute acceptance of the modified agreement.
14. Choice of Law; Venue. The laws of the state of California shall govern the construction and interpretation of this Agreement and shall apply to any disputes arising from it to the extent permitted by applicable law, regardless of conflict of laws principles. Subject to the arbitration provisions provided below, you and Company hereby agree to submit exclusively, to the personal jurisdiction of the state courts with jurisdiction over Santa Clara County, California and/or the U.S. District Court for the Northern District of California.
15.1. Agreement to Arbitrate Disputes. You and Company agree that any Disputes (defined below) will be settled by binding arbitration instead of litigating the Dispute in court. Arbitration means that Disputes will be heard and decided by a neutral arbitrator instead of in a court by a judge or jury. You and Company also agree that the Federal Arbitration Act governs the arbitrability of all Disputes between you and Company, and the interpretation and enforcement of this Section. The term "Dispute" means any dispute, claim, or controversy between you and Company arising out of or relating to your accessing or use of the Software or Services or these Terms of Service, whether based in contract, law, equity, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), including without limitation, any dispute, claim or controversy concerning the validity, enforceability or scope of this Agreement; provided, however, that "Dispute" does not mean or include any action: (1) filed by you or by Company in small claims court; (2) brought by Company regarding its intellectual property rights; (3) brought by Company against an individual or entity that engaged in unauthorized use or receipt of Company services or unauthorized access to Company systems, facilities or services; or (4) the validity, enforceability or scope of section 15.
15.2. Individual Arbitration Actions Only; Class Action Waiver. BOTH YOU AND COMPANY WAIVE THE RIGHT TO RIGHT TO A TRIAL BY JURY AND THE RIGHT TO BRING OR RESOLVE ANY DISPUTE AS A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION. BOTH YOU AND COMPANY WAIVE THE RIGHT TO PARTICIPATE IN A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION RELATED ANY DISPUTE THAT IS BROUGHT BY ANYONE ELSE. NOTWITHSTANDING ANY PROVISION IN THE AAA RULES (DEFINED BELOW) TO THE CONTRARY, THE ARBITRATOR SHALL NOT HAVE THE AUTHORITY OR ANY JURISDICTION TO HEAR THE ARBITRATION AS A CLASS, CONSOLIDATED, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR TO CONSOLIDATE, JOIN, OR OTHERWISE COMBINE THE CLAIMS OF DIFFERENT PERSONS INTO ONE PROCEEDING.
15.3. Arbitration Rules, Jurisdiction and Venue. The arbitration will take place in the United States in the county of Santa Clara, California. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules (the "AAA Rules") then in effect, except as superseded by this Agreement This Agreement governs in the event they conflict with the AAA Rules. Unless you, Company or the arbitrator requests a hearing, the parties will submit their arguments and evidence to the arbitrator in writing. The arbitrator will make an award based only on the documents. This is called a Desk Arbitration. If any party makes a written request for a hearing within ten days after the American Arbitration Association acknowledges receipt of a claimant's demand for arbitration (or the arbitrator requests a hearing), the parties shall participate in a telephonic hearing. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. The arbitrator will make any award in writing ("Arbitration Award") but need not provide a statement of reasons unless requested by a party. The Arbitration Award shall be judicially enforceable. Any court of competent jurisdiction may, and upon request shall, enter judgment on the Arbitration Award. Either party may seek confirmation (judgment on the award) and/or enforcement in any court of competent jurisdiction.
15.4. Severability. If any clause within these Dispute Resolution Provisions (other than section 15.2, "Individual Arbitration Actions Only; Class Action Waiver") is found to be illegal, void or unenforceable, that clause will be severed from these Dispute Resolution Provisions, and the remainder of this Dispute Resolution Provisions will be given full force and effect. If Section 15.2 of these Dispute Resolution Provisions is found to be illegal, void or unenforceable, the arbitration requirements of these Dispute Resolution Provisions will be void, the Dispute at issue will be decided by a court and you and Company have each agreed to waive in that instance, to the fullest extent allowed by law, any trial by jury.
16. Miscellaneous Provisions. This Agreement represents the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, written or oral between the parties with respect to the subject matter hereof. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons other than as expressly provided. This Agreement nor your rights or obligations hereunder may be assigned or transferred (whether expressly, by operation of law, or otherwise) to any other entity without the prior written consent of Company. Any attempted transfer or assignment without such consent shall be null and void ab initio and of no force or effect. Your use of Services may entail and require agreement to additional terms and conditions at the time of your creation of an account permitting access to same. You acknowledge and agree that each member of the group of companies of which Company is affiliated with shall become third party beneficiaries to this Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of this Agreement which confers a benefit on (or rights in favor of) them. No other person, entity or company shall be third party beneficiaries to this Agreement. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, you agree that such provision shall be reformed without further action by you or Company to the extent necessary to make such provision valid and enforceable, and that all other provisions of this Agreement shall remain in full force and effect. Company's acquiescence in the breach of a provision of this Agreement or failure to act upon such breach shall not waive Company's right to act with respect to any following or similar breaches, nor to exercise fully its available remedies and rights at law and equity. Any delay or failure by Company to exercise or enforce any rights, remedies or portion of this Agreement shall not constitute a waiver of such right or provision, unless such waiver is in writing and signed by an authorized officer of Company.
17. Notice. Unless otherwise stated herein, all notices or other communications to Company from you will be deemed given only when received by electronic mail at firstname.lastname@example.org, with a copy sent by overnight delivery or prepaid first class mail, to the address below or any other address provided by Company to you for these purposes:
Attn: Legal Department
920 Stewart Drive, Suite 100
Sunnyvale, California 94085
Last updated: September 10, 2014