ACCEPTANCE OF AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Tapjoy and Publisher hereby agree as follows:
1. DEFINITIONS. Capitalized terms not otherwise defined herein shall have the meanings set forth below:
(a) “Account Configuration” means the selections made by Publisher in creating and configuring its Tapjoy Publisher Account.
(b) “Action(s)” means any action(s) for which Advertisements provide rewards or incentives to Users, including, but not limited to, completion of specified actions within third-party applications or on specified URLs, activation of third-party services, participation in surveys, interaction with video content, transmitting messaging, etc.
(c) “Ad Unit” means any of the advertising units offered by Tapjoy, including but not limited to Offerwall, Direct Play Video, and Full Screen Interstitials, through which Advertisements are displayed in Applications.
(d) “Additional Services” has the meaning set forth in Section 2.2 below.
(e) “Advertisement(s)” means an advertisement, offer, promotion, and/or the like presented or delivered by Tapjoy through the Ad Monetization Services including, without limitation, the advertising content, graphics, format, audio, video, sequence, etc.
(f) “Advertiser” means a third-party advertiser that displays Advertisements to Users via Ad Units via the Tapjoy Publisher Services.
(g) “Advertising Revenue” means amounts actually paid by Advertisers and received and recognized by Tapjoy based on the Ad Monetization Services, less deductions for Network and Account Expenditures.
(h) “Ad Monetization Services” has the meaning set forth in Section 2.2 below.
(j) “Aggregate(d)” means individual Publisher or User data that is combined to provide collective information. As an example, an Aggregated analysis of the percentage of Users that open an Application at least three (3) times in a given month would be calculated based on all Users of all Applications across the Tapjoy network that open an Application at least three (3) times in a given month.
(k) “Analytics Services” has the meaning set forth in Section 2.2 below.
(l) “Analytics Services Data” means all data made available to or otherwise accessed by Tapjoy by or in connection with Publisher’s Applications and used by Tapjoy to provide the Analytics Services to Publisher, including but not limited to data relating to User interaction with the Applications.
(m) “Application(s)” means the Publisher application(s) selected by Publisher in connection with the Tapjoy Publisher Services, including any successor titles, updates and title changes.
(n) “Cross-Promotion Service” means the interface and solutions that allow Publisher to cross-promote within an Application other applications or properties owned and controlled by such Publisher.
(o) “Data” means, collectively, the Ad Monetization Services Data and the Analytics Service Data. “Data” expressly excludes Usage Data, Derivative Data and Reports.
(p) “Derivative Data” means data and analyses synthesized by the Tapjoy Platform using the Data.
(q) “Direct Play Video,” “DPV,” or “Auto Play Video” means the Tapjoy video Ad Unit that is played either automatically or upon User initiation.
(r) “Exclusive” and “Exclusivity” means with respect to the applicable Ad Unit, that Publisher will engage and maintain Tapjoy as the exclusive provider of said Ad Unit for the Application(s).
(s) “First Call” means, with respect to the applicable Ad Unit, Publisher’s commitment to engage Tapjoy as the first advertising provider from which Publisher will request an Advertisement for each ad impression opportunity in an applicable Application (i.e., Tapjoy shall be the advertising provider whose Advertisements have priority over all other Advertisements, including those from competing third-party advertising providers).
(t) “Guidelines” has the meaning set forth in the first paragraph above.
(u) “IAP Data” means all Publisher or User data regarding individual in-app purchase transactions.
(v) “Interstitial,” “Full Screen Interstitial,” or “FSI” means the Tapjoy Ad Unit that is automatically displayed to the User upon occurrence of a Publisher-defined event within the Application.
(w) “MAU” means monthly active users.
(x) “Network and Account Expenditures” means direct and indirect expenses attributable to account acquisition and management, including but not limited to network-related expenses, adjustments and charge-backs, taxes, refunds, uncollected amounts, agency and partner fees and expenses, marketing credits, referral fees, and payment processing fees.
(y) “Offerwall” means the Tapjoy Ad Unit that presents multiple offers from which Users may select to engage with one or more Advertisement(s).
(z) “Order Summary” means, where applicable, the Tapjoy Order Summary incorporating by reference these Terms of Service and summarizing the details of the Tapjoy Publisher Services engaged by Publisher.
(bb) “Report(s)” means a compilation of any requested information, which may include Data, Usage Data or Derivative Data, provided to Publisher in connection with the Ad Monetization Services, and/or the Analytics Services, respectively.
(cc) “Revenue Share” means a percentage of Advertising Revenue payable to Publisher.
(dd) “SDK” or “Software Development Kit” means the software (source and/or object code), applications, sample code, tools, libraries, APIs, data, files, plug-ins, documentation and other materials, including updates or upgrades, made available through Tapjoy’s SDK download website located at https://ltv.tapjoy.com/d/sdks or at such other URL as provided by Tapjoy from time to time. Use of the SDK is subject to acceptance of the SDK License Agreement, which can be found here http://home.tapjoy.com/info/legal/#SDK-license.
(ee) “Exchange Services” has the meaning set forth in Section 2.2 below.
(ff) “Tapjoy Platform” means the Tapjoy Publisher Services, together with the Publisher-facing tools and interface on the Tapjoy websites, which collectively allow the Publisher to use and configure the Tapjoy Publisher Services.
(gg) “Tapjoy Publisher Services” means one or more of the Ad Monetization Services, Analytics Services and Additional Services.
(hh) “Usage Data” means all data relating to Publisher’s use of the Tapjoy Platform, whether collected by Tapjoy directly or provided by Publisher to Tapjoy.
(ii) “User” means the end user who views, uses or otherwise engages with an Application.
(jj) “Virtual Currency Management Service” means the hosting service, interface and solutions provided by Tapjoy to enable Publisher to host and manage a virtual currency system for the Application(s).
2. TAPJOY PUBLISHER SERVICES.
2.1 Order Summary. Publisher may engage one or more of the Tapjoy Publisher Services defined through Publisher’s Account Configuration. Where applicable, Tapjoy will provide Publisher with an Order Summary for the relevant Tapjoy Publisher Service.
2.2 Service Types.
(a) Ad Monetization Services. Tapjoy’s Ad Monetization Services present or display Advertisements to Users within the Applications through Ad Units, inclusive of Advertisements displayed in conjunction with Exchange Services (collectively, the “Ad Monetization Services”).
(b) Analytics Services. Tapjoy’s Analytics Services provide Publishers with the ability to collect, analyze, and use information about how Users interact with Application(s) (the “Analytics Services”).
(c) Exchange Services. Tapjoy Exchange Services enable the display of Advertisements sourced via programmatically integrated Exchange Partners (each an “Exchange Partner”).
(d) Additional Services. Tapjoy’s Additional Services include collectively, the Cross-Promotion Service, Virtual Currency Management Service, and any other Tapjoy Publisher Services not expressly enumerated in this Agreement but as selected through Account Configuration or in an amendment (collectively, the “Additional Services”).
3. PUBLISHER OBLIGATIONS.
3.1 Access and Use. Tapjoy will provide Publisher with the ability to create a password-protected account (“Publisher Account”) in order to use the Tapjoy Publisher Services. Access to each Publisher Account is provided only to that Publisher, and Publisher is strictly prohibited from providing access to the Publisher Account to any third party. As between the parties, Publisher is at all times responsible for maintaining the strict confidentiality of the Publisher password and is responsible for any access to or use of Publisher Account, including any fees, costs, or expenses incurred or accumulated as a result of such use, by Publisher or by any other person or entity using the Publisher password, whether or not such access or use has been authorized by or on behalf of Publisher, and whether or not such person or entity is Publisher’s employee or agent. Publisher agrees to (a) notify Tapjoy immediately of any unauthorized use of the Publisher password or Publisher Account or any other breach of security; and (b) ensure that Publisher (or the Publisher employee, as applicable) exits from the Publisher Account at the end of each session. Tapjoy is not responsible or liable for, and Publisher hereby waives any claim against Tapjoy in connection with, any loss or damage arising from Publisher’s failure to comply with this Section 3.1.
3.2 Ad Monetization Services; Additional Services.
(a) Publisher shall use data and software provided by Tapjoy (including Usage Data) in connection with the Ad Monetization Services for the sole purpose of displaying Advertisements in the Application(s), and Publisher will display, or allow for the display of, all Advertisements in connection with the Ad Monetization Services and any applicable amendment.
(b) Publisher will timely comply with Tapjoy’s requirements regarding onboarding and enablement of proper display of Advertisements, including but not limited to requirements relating to placement, delivery, code implementation, and adherence to technical specifications. Any exceptions must be pre-approved in writing by Tapjoy.
(c) Publisher shall not modify, edit, alter, obscure or truncate the content, text, appearance or order of any Advertisement(s), or aggregate one or more Advertisements with any other offers (e.g., by creating a mediated or aggregate offerwall that combines Advertisements provided by Tapjoy with advertisements from other sources).
(d) Publisher acknowledges and agrees that the Cross-Promotion Service is intended for Publisher’s promotion only of its own Applications. For the avoidance of doubt, Publisher is not permitted to use the Cross-Promotion Service for any third-party applications, including but not limited to those of its partners or affiliates.
(e) Publisher shall not, directly or indirectly, nor shall Publisher authorize or encourage any third party to, (i) generate fraudulent impressions or fraudulent clicks; or (ii) take similar or other fraudulent actions, including but not limited to, manipulation of device ids, misrepresentation of geo-location or other offer eligibility information, etc., or (iii) take any other actions that interfere with, disrupt or interact in an unauthorized manner with the Tapjoy Publisher Services (or servers and networks connected thereto), including but not limited to, through repeated manual clicks, the use of robots, scrapers or other automated query tools and/or computer generated requests. Tapjoy may terminate or suspend the Publisher Account at any time for any reason, including but not limited to because of suspected fraudulent activity. Publisher acknowledges and agrees that Tapjoy may, in its sole discretion, review impressions, click-through or other actions, and Publisher shall not be entitled to receive any Revenue Share attributable to Problem Events, as defined in Section 6.2(d) below.
(f) Except as otherwise provided in an applicable amendment, Publisher agrees that Tapjoy shall be the Exclusive provider of all Ad Units for the Application(s) and that Publisher will not implement or engage any competing third-party Ad Units within the Application(s) concurrently with the Ad Monetization Services.
3.3 Analytics Services.
3.4 Exchange Services The following obligations will apply in addition to the obligations set forth in Section 3.2 above.
(a) Ad Tags. Publisher will not modify any advertisement tags provide by Exchange Partners (“Ad Tags”), and Publisher will make commercially reasonable efforts to place Ad Tags on its Application(s) in accordance with reasonable trafficking instructions provided by Tapjoy. Publisher understands that any modification by Publisher to the Ad Tags, or Publisher’s failure to comply with such trafficking instructions, may result in errors and discrepancies for which neither Tapjoy nor the Exchange Partner is responsible. Publisher will disable or remove Ad Tags from its Application(s) within two (2) business days of Tapjoy’s request.
(b) Marks. Publisher hereby grants to Tapjoy a worldwide, non-exclusive, non-transferable (except as set forth in Section 20 of the Agreement) fully paid up, royalty free license, with express right of sublicense to each Exchange Partner, to use, reproduce and display Publisher’s names, logos, service marks, trademarks and related brand features (“Marks”) for use within each Exchange Partner’s platform in connection with Publisher’s participation in the Exchange Service. All such use of Publisher’s Marks will be in compliance with any written usage guidelines provided to Tapjoy or the applicable Exchange Partner by Publisher. All goodwill in the Marks inures to the benefit of Publisher. Each of Tapjoy and the applicable Exchange Partner will promptly modify or cease its use of Marks as directed by Publisher in writing. Tapjoy’s licensed rights, and the applicable Exchange Partner’s sublicensed rights, in and to Publisher’s Marks are limited solely to those rights granted herein.
(c) No Children’s Applications. Publisher represents, warrants, and covenants that (i) its Application(s) are not and shall not during the Term be directed to users under 13 years of age; (ii) Publisher does not as of the date Publisher creates a Publisher Account, and will not during the Term, collect, use, or disclose personal information from any end user known to Publisher to be a child under 13; (iii) Publisher will notify Tapjoy and the applicable Exchange Partner in writing immediately if either (i) or (ii) becomes or is discovered to be inaccurate.
(d) Indemnification. Publisher as applicable shall indemnify, defend Tapjoy, each Exchange Partner, and each of their agents, officers, directors and employees (collectively, “Indemnitees”) from and against any claims, suits or proceedings brought by a third party (“Claims”) against any Indemnitee to the extent arising from: (a) any Publisher Application that contains content prohibited by the Guidelines, as updated from time to time, (b) any activity prohibited by Section 3.5 directly or indirectly engaged in or authorized by Publisher, (c) a claim that a Publisher’s Marks, when used in accordance with the terms of this Agreement, infringe any patents, trademarks, service marks, trade names, design rights, copyrights, database rights, trade secrets, rights in know-how and other intellectual property rights, of whatever nature and wherever arising, whether registered or unregistered and including applications for the grant of any such rights (collectively, “Intellectual Property Rights”) of any third party, or (d) breach by the Publisher of any aspects of this Agreement.
(e) Express Third-Party Beneficiary. Publisher agrees and acknowledges that each Exchange Partner is an express third-party beneficiary of this Agreement.
(f) Indemnification Procedure. In the event of a Claim against any Indemnitee, the Indemnitee shall notify Publisher and shall seek indemnity directly from Publisher. Publisher will promptly notify Tapjoy of any request for indemnity received from an Exchange Partner or any Exchange Partner Indemnitee. Publisher’s indemnification obligations above are contingent on the indemnified party: (a) promptly notifying Publisher of any Claim (provided that the indemnified party’s failure to provide such prompt notice will not release Publisher from its indemnification obligations except to the extent Publisher is materially prejudiced thereby); (b) providing Publisher with any reasonable information and assistance needed to defend or settle the Claim (provided Publisher bears any out of pocket expenses incurred by the indemnified party in providing such assistance or information), and (c) allowing Publisher the right to have sole control of the investigation, defense and settlement of the Claim (provided that Publisher will not enter into any settlement of a Claim that: (i) imposes a monetary obligation on the indemnified party that is not covered by the indemnification, (ii) imposes a material, non-monetary obligation on the indemnified party, (ii) does not include an unconditional release of the indemnified party, or (iv) admits liability on the part of the indemnified party, without in each case obtaining the indemnified party’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed). The indemnified party shall have the option, at its expense, to participate in the defense or settlement of the Claim with counsel of its own choosing. Publisher shall pay the indemnified Exchange Partner any damages finally awarded against such Exchange Partner, settlements agreed to in accordance with this subpart (c), and reasonable costs and expenses (including reasonable attorneys’ fees) directly attributable to such Claim.
3.5 General Requirements and Restrictions.
(a) Publisher shall not, and shall not authorize or otherwise permit any third party to: (i) use any Tapjoy Publisher Services or Service Content (defined below) for any purpose except for Publisher’s own internal use; (ii) market, sell, lease, rent, sublicense, distribute, syndicate or otherwise make available to any third party any of the Tapjoy Publisher Services or any component thereof; (iii) use the Tapjoy Publisher Services or any component thereof for timesharing or service bureau purposes, or otherwise for the benefit of any third party (iv) store, copy, modify, distribute, or resell any of the Advertisements or any other content provided via the Tapjoy Publisher Services (collectively, “Service Content”) or compile or collect any Service Content as part of a database or other work; (v) use any automated tool (e.g., robots, spiders) to access or use the Tapjoy Platform or to store, copy, modify, distribute, or resell any Service Content; (vi) circumvent or disable any digital rights management, usage rules, or other security features of the Tapjoy Platform; (vii) use the Tapjoy Platform in a manner that overburdens, or that threatens its integrity, performance, or availability or that of any Tapjoy Publisher Services; (viii) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) on any portion of the Tapjoy Publisher Services or any Service Content; or (ix) circumvent, bypass, or cheat the functionality of the Tapjoy Publisher Services through any of the following methods, including but not limited to, by auto-spawning of pages or hijacking of an end user’s device, automatic Advertisement refreshes (unless instigated by an end user page refresh), or any other method designed to fraudulently, deceptively, or artificially inflate the number of impressions, clicks or other payable actions.
(c) Publisher will comply with the Guidelines and any applicable requirements imposed by its platform licensors (i.e., Apple, for iOS Applications, and Google, for Android Applications).
(d) Publisher will use the Tapjoy SDK only as provided by Tapjoy, without modification. Publisher will use the latest generally available version of the SDK in accordance with the terms of the applicable license (available online at http://home.tapjoy.com/info/legal/#SDK-license) at all times during the term of this Agreement. Any obligation of Tapjoy to Publisher arising from Publisher’s use of the SDK is limited to the then-current version of the SDK.
(e) Publisher agrees that it will not use the Tapjoy Publisher Services to collect “personal information” as defined under applicable law including but not limited to the U.S. Children’s Online Privacy Protection Act, 15 U.S.C. §§ 6501–6506 (“COPPA”), through a child-directed Application (whether or not such Application is labeled or described as a “Kids” or “Children” Application), or from a User that Publisher has actual knowledge is under 13. Publisher further agrees that it will not transmit any “personal information” from children under 13 to Tapjoy.
4.1 Publisher hereby grants to Tapjoy a non-exclusive, perpetual, irrevocable, royalty-free, fully paid up, worldwide, sub-licensable, transferable, right and license to reproduce, display, distribute, copy, modify, amend, create derivative works from, and otherwise use the Data for any purpose in connection with or otherwise related to the provision and operation by Tapjoy of the Tapjoy Publisher Services (including but not limited to the provision of Tapjoy Publisher Services to third parties) subject to the terms of Section 4.2 below. With respect to any Usage Data, Derivative Data and Reports that Tapjoy may provide to Publisher, Tapjoy hereby grants Publisher a non-exclusive, royalty-free, fully paid up, revocable, non-transferable, non-sublicenseable right and license to reproduce, display, distribute, copy, modify, amend, create derivative works from, and otherwise use the Usage Data, Derivative Data and the Reports for internal business purposes and in accordance with any Tapjoy attribution requirements provided to Publisher in connection therewith.
5. RESERVATION OF RIGHTS.
Tapjoy reserves the right, in its sole discretion, to reject or remove any Application and to restrict, suspend, or terminate Publisher’s access to the Tapjoy Publisher Services at any time, for any or no reason, with or without prior notice, and without liability.
(a) All payments will be made in U.S. dollars (USD) unless the parties have agreed in writing to use of an alternate currency.
(b) Each party is solely responsible for any costs it incurs in connection with its obligations hereunder. The payee is solely responsible for the payment of, and will pay when due, all applicable taxes, including, as applicable, any value added tax, federal and state taxes, sales, use, excise or transfer taxes and other taxes associated with payments to the payee under this Section 6.1. When acting as payee responsible for payment of taxes, each party will indemnify the other party for all costs, losses, liabilities and expenses, including penalties, arising from any failure to do so, subject to the additional terms of this Agreement.
(c) Both parties agree that Tapjoy expressly reserves the right to set off amounts owed to Publisher against any other amounts owed by Publisher relating to any Tapjoy Publisher Services.
(d) The payer is responsible for all transmission fees that may be assessed by its banking institution for payments it makes hereunder.
6.2 Ad Monetization Services.
(a) Except as otherwise agreed in an applicable amendment, Tapjoy shall pay Publisher its due and payable then-current standard Revenue Share associated with Advertising Revenue derived from Publisher’s use of the Ad Monetization and Exchange Services, net of any amounts due in connection with the provision of the Analytics Services, including Network and Account Expenditures, if any, and/or other sums due hereunder (e.g. in the case of Additional Services) within forty-five (45) days following the end of each calendar month, provided that amounts payable of less than two hundred fifty dollars USD ($250) will be held until amounts due equal or exceed $250, and subject to Publisher providing Tapjoy, complete and accurate information relating to remittance of payment and requested tax information.
(b) If Publisher disputes in good faith the amount of any payment hereunder, it shall notify Tapjoy in writing within no more than thirty (30) days from the date of payment; failure to provide such notice of dispute within such 30-day period shall be deemed acceptance of the amount paid and an irrevocable waiver of Publisher’s right to dispute such payment.
(c) Payments in all cases shall be based on Tapjoy’s measurements, which shall be the system of record for calculating sums payable hereunder. Payments are rounded down to the nearest penny. All billing and transaction times referenced in this Agreement are on Coordinated Universal Time. All fees are in United States dollars.
(d) Tapjoy will not be obligated to pay for any fraudulent actions generated by any person, bot, automated program or other device or mechanism in connection with any Advertisements or Additional Services provided by Tapjoy, as reasonably determined by Tapjoy. Tapjoy will not be obligated to make a payment to Publisher of amounts, and Publisher agrees that Tapjoy may, in its sole discretion, either deduct or require Publisher to remit to Tapjoy in full within five (5) business days any amount paid out from amounts otherwise due to Publisher, to the extent based on: (i) any issuance of virtual goods or virtual currency through any fraudulent or invalid means; (ii) any issuance of virtual goods or currency in connection with any amounts subsequently refunded, credited or subject to a credit card charge-back; or (iii) any action that is fraudulent, invalid, suspicious, noncompliant with Tapjoy terms, or otherwise questionable (the events described in (i) through (iii) collectively, “Problem Events”). Publisher represents, warrants, and covenants that it has made and will continue to make industry-standard and commercially reasonable efforts to prevent the occurrence of Problem Events, and will notify Tapjoy upon the occurrence of any suspected or confirmed Problem Events. Tapjoy reserves the right, in its reasonable judgment, to delay or suspend payment of Revenue Share based on Problem Events. Publisher will reasonably cooperate with Tapjoy in its investigation of Problem Events and to prevent misuse of the Tapjoy Publisher Services. If Publisher suspects any such misuse it will promptly notify Tapjoy and will act promptly to reduce or mitigate such misuse.
(e) In the event of an error in payments made to Publisher as determined by Tapjoy, whether as a result of inaccurate information provided by a third party or otherwise, then Tapjoy shall in its sole discretion either (i) require reimbursement in full of any such amount, and Publisher shall remit same to Tapjoy promptly but in no more than five (5) business days, or (ii) allocate any deficient amounts or deduct any overpayment in the subsequent calendar month payment due to Publisher.
6.3 Analytics Services. Pricing and payment terms for the Analytics Services shall be specified in an Analytics Services Order Summary or amendment, or in the absence of such Order Summary or amendment, according to the rate card listed online at https://home.tapjoy.com/pricing/ (as updated from time to time), subject to Section 6.2(a) above, as applicable.
7.1. As between the parties, and subject to the licenses expressly granted in this Agreement, Publisher and its licensors will own and retain all right, title, and interest in and to (a) the Application(s) and (b) any Data provided by Publisher, including Data collected through the Tapjoy SDK. Publisher shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Data.
7.2. As between the parties, Tapjoy and its licensors will exclusively own and retain all right, title, and interest in and to: (a) the Tapjoy Platform, including all Tapjoy Publisher Services and the SDK, including all information and software (and improvements and updates) related thereto, and all Usage Data and Derivative Data (including compilations thereof but excluding the Data) collected through the Tapjoy Publisher Services, the Advertisements or the Tapjoy Platform; (b) any materials, information, inventions, data or software (and improvements and updates related thereto) which were owned by Tapjoy or its affiliates prior to the Effective Date of this Agreement or which are subsequently created by Tapjoy (either solely or jointly with Publisher) under this Agreement, excluding Data; and (c) the Reports (except with respect to Data contained therein).
8.1. “Confidential Information” of Tapjoy includes: (a) as between Tapjoy and Publisher, the Advertisements, prior to publication hereunder; (b) information relating to pricing, pricing structures, revenue, suppliers, customers, and Tapjoy’s financial model and methodologies; (c) data (including any Usage Data, Derivative Data and compilations thereof), information or software relating to or collected through the Tapjoy Publisher Services (except for the Data); and (d) the Reports (except with respect to Analytics Service Data contained therein).
8.2. “Confidential Information” of either party means, in addition to the foregoing, any information designated in writing, or identified orally at time of disclosure, by the disclosing party as “confidential” or “proprietary.” Each party will keep confidential, and neither party will use for any purpose, or disclose to any third party (other than a party’s respective officers, directors, employees, contractors, and/or advisors with a need to know under this Agreement and an independent obligation of confidentiality no less protective than the terms hereof), any Confidential Information of the other party except to fulfill its obligations or exercise its rights under this Agreement, except as otherwise permitted by this Agreement. This restriction will survive the expiration or termination of this Agreement. The foregoing restriction does not apply to information that: (a) has been independently developed by the receiving party without access to the other party’s Confidential Information and without any breach of any obligation of this Agreement; (b) has become publicly known through no breach of this Section 8 by the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure; (d) has been approved for release in writing by the disclosing party; or (e) is required to be disclosed by a competent legal or governmental authority, provided that the receiving party gives the disclosing party prompt notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure. Confidential Information is the sole and exclusive property of the disclosing party or its licensors, suppliers, or clients. Except as set forth herein, upon expiration or termination of this Agreement for any reasons, or upon the reasonable request of either party, the receiving party shall promptly return or destroy all Confidential Information of the other party and any copies of the Confidential Information of the other party to its owner and certify in writing that it has so returned or destroyed all such Confidential Information.
Tapjoy may suspend or terminate this Agreement or any portion hereof, or any Order Summary or amendment, or any portion thereof, at any time for any reason or for no reason without notice to Publisher. Publisher may terminate this Agreement at any time for any reason or for no reason upon at least thirty (30) days’ prior written notice to Tapjoy. Upon termination of this Agreement, each party will remain liable to the other for any amounts due and owing to the other party as of the date of termination, and such obligation to pay shall survive the termination of this Agreement. Upon any termination of this Agreement, Publisher will cease distribution of any Application that incorporates the SDK and certify thereto in writing to Tapjoy within five (5) business days of such termination.
10. COMPLIANCE WITH LAWS.
Publisher hereby grants to Tapjoy a royalty-free, fully paid up, sub-licensable, transferable, nonexclusive, worldwide, irrevocable and perpetual license to reproduce, display, distribute, and otherwise use, in connection with the Tapjoy Publisher Services, the trademarks, service marks, logos or other indicia of origin associated with Publisher and its Application(s), for the purpose of promoting Publisher and its Application(s) in Tapjoy’s advertising, marketing, promotions and promotional materials.
12. REPRESENTATIONS, WARRANTIES AND COVENANTS.
In addition to the representations, warranties and covenants made under other sections of this Agreement, Publisher further represents, warrants and covenants that: (a) Publisher is the owner or legally authorized to act on behalf of the owner of each Application for which Publisher engages any Tapjoy Publisher Service; (b) Publisher has and will maintain all necessary rights, power, licenses and authority to enter into this Agreement and to perform the acts required of Publisher hereunder and to permit Tapjoy to perform its obligations contemplated under this Agreement; (c) the Applications, including software, documentation and other information related thereto, are in compliance with the Guidelines and do not infringe the intellectual property rights, privacy rights or other rights of any person or entity; (d) Publisher has complied, and will continue to comply, with all applicable laws, statutes, ordinances, and regulations (including but not limited to, any relevant data protection or privacy laws); (e) Publisher will obtain and comply with any and all applicable consents, authorizations and clearances from Users to allow Tapjoy to collect, store, and use User Data; and (f) Publisher will at all times comply with the terms of this Agreement (including but not limited to these Terms of Service and the terms of an applicable Order Summary or amendment for the applicable Tapjoy Publisher Services), all Tapjoy policies, the Guidelines, and any other Terms of Service provided by Tapjoy in connection with any one or more of the Tapjoy Publisher Services, or any amendments to the foregoing, and with the applicable laws, regulations and rules of all applicable countries and other jurisdictions.
13.1 Publisher will indemnify, defend and hold harmless Tapjoy and its affiliates, and their respective officers, directors, employees, agents, and contractors on demand from and against any third party claims, allegations, losses, costs, liabilities, damages, penalties, settlements, judgments, fees and expenses (including without limitation reasonable attorneys’ fees and expenses) (collectively “Losses”) arising out of or related to any actual or alleged: (a) breach by Publisher, its affiliates or their respective officers, directors, employees, agents or contractors (collectively, “Publisher Representatives”) of any term(s) of this Agreement, including but not limited to Publisher’s representations, warranties and covenants hereunder; (b) claims that any applications (including the Application(s)), products, services or software distributed, made available or developed by Publisher infringe any third party’s intellectual property rights, privacy, rights of publicity or other rights; and (c) violation or failure by Publisher or any Publisher Representative to comply with all laws and regulations in connection with Publisher’s Applications, use of the Tapjoy Platform (including Tapjoy Publisher Services) or otherwise, whether or not described herein.
13.2 Publisher reserves the right, at Publisher’s expense, to provide Tapjoy with prompt written notice of its intention to assume the exclusive defense and control of any matter for which Publisher is required to indemnify Tapjoy (absent which Tapjoy shall control such defense at Publisher’s cost), and Tapjoy agrees to reasonably cooperate with Publisher’s defense of such claims at Publisher’s expense. Publisher shall not enter into any settlement for which indemnity is sought unless: (a) such settlement includes an unconditional release of Tapjoy and its affiliates from all liability on all claims; and (b) Tapjoy gives its prior written approval, which shall not be unreasonably withheld.
14.1 TAPJOY, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES, DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN CONNECTION WITH THE TAPJOY PLATFORM, INCLUDING THE TAPJOY PUBLISHER SERVICES, THE CONTENT, FUNCTIONALITY OR PERFORMANCE OF ANY OF THE TAPJOY PUBLISHER SERVICES, THE SDK, ANY ADVERTISEMENT OR ANY APPLICATION, AND ANY OTHER TAPJOY PRODUCTS OR SERVICES TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE TAPJOY PLATFORM AND ALL TAPJOY PUBLISHER SERVICES AND SDK ARE PROVIDED “AS-IS” AND WITHOUT WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF PERFORMANCE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHER, TAPJOY DOES NOT MAKE, AND HAS NOT MADE, ANY REPRESENTATION OR WARRANTY THAT THE TAPJOY PLATFORM OR THE TAPJOY PUBLISHER SERVICES OR SDK ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR VIRUS-FREE OR THAT THE OPERATION OF THE TAPJOY PUBLISHER SERVICES OR SDK WILL BE UNINTERRUPTED. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO PUBLISHER. TAPJOY DOES NOT WARRANT OR GUARANTEE: (A) THE RESULTS OF USE OF THE TAPJOY PUBLISHER SERVICES INCLUDING THAT PUBLISHER WILL EARN ANY PARTICULAR AMOUNTS (OR ANY AMOUNTS AT ALL); (B) THE RESULTS OF ANY CONSULTING, DEVELOPMENT, OR OTHER SERVICES PROVIDED BY TAPJOY; OR (C) THE ACCURACY OR COMPLETENESS OF THE REPORTS. Without limiting the generality of the foregoing, Publisher acknowledges that some of the Tapjoy Publisher Services are based, in whole or in part, on an auction model and some of the main factors that determine the revenue therefrom are not within Tapjoy’s control.
14.2 Publisher acknowledges and agrees that Tapjoy is not affiliated with or responsible for any third-party products or services displayed, distributed or otherwise promoted in connection with the Tapjoy Publisher Services, including without limitation, the Advertisements. Tapjoy neither represents nor endorses the quality, accuracy, reliability, integrity or legality of any third party products or services, nor the truth or accuracy of the description of any Advertisements, links, content, advice, opinions, offers, proposals, statements, data or other information from any third party products or services that are displayed, distributed or otherwise used in connection with the Tapjoy Publisher Services.
15. LIMITATION OF LIABILITY AND DAMAGES.
NOTHING IN THESE TERMS AND CONDITIONS SHALL LIMIT OR EXCLUDE TAPJOY’S LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES, AGENTS OR SUB-CONTRACTORS; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW. IN NO EVENT WILL TAPJOY, ITS PARENT, SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTRACTORS (COLLECTIVELY, THE “TAPJOY PARTIES”), BE LIABLE TO PUBLISHER OR ANY OTHER PERSON OR ENTITY WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS ARISING OUT OF THIS AGREEMENT, EVEN IF TAPJOY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. THE TAPJOY PARTIES’ AGGREGATE LIABILITY IN RESPECT OF ALL OTHER LOSSES ARISING OUT OF THIS AGREEMENT WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, WILL NOT EXCEED ONE HUNDRED DOLLARS ($100) USD. 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 TAPJOY PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE TAPJOY PUBLISHER SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS, AND PUBLISHER AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, DISCLAIMERS AND EXCLUSIVE REMEDIES SPECIFIED HEREIN ARE FAIR AND REASONABLE AND WILL SURVIVE EVEN IF THE TAPJOY PUBLISHER SERVICES, THIS AGREEMENT, ANY APPLICABLE ORDER SUMMARY OR AMENDMENT, OR ANY ELEMENT THEREOF IS FOUND TO HAVE FAILED IN ITS OR THEIR ESSENTIAL PURPOSE. PUBLISHER ACKNOWLEDGES AND AGREES THAT ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE RAISED WITHIN 12 MONTHS FROM THE DATE OF ACCRUAL THEREOF OR SUCH CLAIM SHALL BE FOREVER WAIVED. IF PUBLISHER IS DISSATISFIED WITH ANY ASPECT OF THE TAPJOY PUBLISHER SERVICES OR THIS AGREEMENT AT ANY TIME, PUBLISHER’S SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE TAPJOY PUBLISHER SERVICES.
16. GOVERNING LAW AND JURISDICTION.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S., without giving effect to principles of conflicts of law.
17. DISPUTE RESOLUTION/ARBITRATION.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. Tapjoy and you (Publisher) agree that these Terms of Service affect interstate commerce and that the Federal Arbitration Act governs the interpretation of these arbitration provisions.
17.1. Informal Resolution. In the event of a dispute, claim, or controversy arising out of or relating to these Terms of Service (including with respect to their validity or enforceability), the Tapjoy Platform (including Tapjoy Publisher Services), any person’s or entity’s access to and/or use of the Tapjoy Platform or Tapjoy Publisher Services, and/or the provision of content, products, services, and/or technology on or through the Tapjoy Platform or Tapjoy Publisher Services, Tapjoy or you must first give the other notice of the dispute, claim, or controversy, and the notice must include a brief written statement that sets forth the name, address, and contact information of the party giving it, as well as the facts giving rise to the dispute, claim, or controversy and the relief requested. Notices must be made in accordance with Section 19 hereof. Tapjoy and you will attempt to resolve any dispute, claim, or controversy through informal negotiation within thirty (30) days from the date that any notice of dispute, claim, or controversy is sent. Tapjoy and you shall use reasonable, good faith, efforts to settle any dispute, claim, or controversy through consultation and good faith negotiations. After 30 days, Tapjoy or you may resort to the other alternatives described in this Section. Notwithstanding the foregoing, the notice and 30 day negotiation period required by this paragraph shall not apply to disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Tapjoy Publisher Services. Nothing in this subsection 17.1 limits Tapjoy’s rights under Section 6.2(d) with respect to Problem Events or to suspend the Publisher Services at any time.
17.2 Formal Resolution by Arbitration. Except as otherwise specifically set forth below, any dispute, claim, or controversy of any kind between Tapjoy and you arising out of or relating to these Terms of Service (including with respect to their validity or enforceability), the Tapjoy Publisher Services, any person’s or entity’s access to and/or use of the Tapjoy Publisher Services, and/or the provision of content, products, services, and/or technology on or through the Tapjoy Publisher Services, if unresolved through informal discussions within thirty (30) days of the sending of the notice described above, shall be resolved by binding arbitration to be held in San Francisco, California, U.S. The arbitration shall be conducted by a single arbitrator, governed by JAMS pursuant to its Comprehensive Arbitration Rules & Procedures (collectively, “JAMS Rules”), as modified by these Terms of Service, and administered by JAMS. The JAMS Rules and fee information are available at https://www.jamsadr.com/ or at such other URL as JAMS may provide from time to time, or by calling JAMS at + 1-800-352-5267. The decision of the arbitrator will be in writing and binding and conclusive on Tapjoy and you, and judgment to enforce the decision may be entered by any court of competent jurisdiction. Tapjoy and you agree that dispositive motions, including without limitation motions to dismiss and motions for summary judgment, will be allowed in the arbitration. The arbitrator must follow these Terms of Service and can award the same damages and relief as a court, including injunctive or other equitable relief and attorney’s fees. Tapjoy and you understand that, absent this mandatory arbitration provision, Tapjoy and you would have the right to sue in court and have a jury trial. Tapjoy and you further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.
17.3 Exceptions. Notwithstanding the foregoing, disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks, Confidential Information, and trade secrets and claims of piracy or unauthorized use of the Tapjoy Publisher Services shall not be subject to arbitration. You or Tapjoy may choose to pursue a claim in small claims court where jurisdiction and venue over you and Tapjoy otherwise qualify for such small claims court and where the claim does not include a request for any type of equitable relief. If for any reason a claim, dispute or controversy between Tapjoy and you is before a court (e.g., if the arbitration provisions are found unenforceable or if pursuant to these Terms of Service the matter is not subject to arbitration), Tapjoy and you agree to exclusive personal jurisdiction and venue in the state and federal courts located in San Francisco, California and agree to waive, to the fullest extent allowed by law, any trial by jury.
17.5 Applicability. This Section 17 will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of Tapjoy, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Terms of Service (including with respect to their validity or enforceability), the Tapjoy Publisher Services, any person’s or entity’s access to and/or use of the Tapjoy Publisher Services, and/or the provision of content, products, services, and/or technology on or through the Tapjoy Publisher Services.
All comments, feedback or materials submitted by Publisher to Tapjoy including feedback, testimonials, images, reviews, questions, comments, suggestions or ideas (collectively, “Feedback”) shall be received and treated by Tapjoy on a non-confidential and unrestricted basis. Tapjoy will be free to use, display, perform, distribute, copy, adapt, and promote, in any medium now known or later developed, without compensation to Publisher, the Feedback along with all ideas, concepts, know-how, techniques or methodologies contained in such Feedback, for any purpose whatsoever, including without limitation, developing, marketing and selling products and services incorporating such Feedback. Publisher agrees that, in submitting Feedback, it will not violate any right of any third party, including any confidentiality, copyright, trademark, privacy or other personal or intellectual property or proprietary rights, and will not cause injury to any person or entity. Publisher further agrees that no Feedback Publisher submits will be or contain libelous or otherwise unlawful, threatening, abusive or obscene material, or contain viruses, commercial solicitations, or any form of “spam”.
Notices to Publisher shall be sent by email to the address provided for Publisher in the Account Configuration. Notices to Tapjoy shall be sent by email email@example.com with a copy to firstname.lastname@example.org; provided, however, that any notice concerning termination, breach, indemnification or any other legal concern (collectively, “Legal Notice”) shall be made in writing and delivered by hand delivery, or by internationally recognized overnight courier service, or by prepaid, certified U.S. mail return receipt requested to: Tapjoy, Inc., 111 Sutter Street, 12th Floor, San Francisco, CA 94104, USA, Attn: Legal Department. Notices shall be effective upon receipt; provided that notices sent by email shall be effective as of the email date absent receipt by the sender of a bounce back or error message, and provided further that Legal Notices shall be effective only if made and delivered in the manner expressly set forth above.
The words “include” and “including” and variations thereof will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” This Agreement sets forth the entire agreement between Tapjoy and Publisher, and supersedes any and all prior agreements (whether written or oral) with respect to the subject matter set forth herein. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned without Tapjoy’s prior written consent, and any attempt to do so in breach of the foregoing will be null and void. This Agreement shall inure to the benefit of and be binding upon each party’s respective successors and assigns. Tapjoy and Publisher are independent contractors, and neither Tapjoy nor Publisher is an agent, representative or partner of the other. Tapjoy may amend or update these Terms of Service at any time in its sole discretion by posting any such amended or updated Terms of Service to Tapjoy’s website or otherwise notifying Publisher. Publisher’s continued use of the Tapjoy Publisher Services following such posting or notice of amended and/or updated Terms of Service shall constitute Publisher’s acceptance of the amended and/or updated Terms of Service. Tapjoy reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Tapjoy Publisher Services without notice. Tapjoy will not be liable to Publisher or to any third party for any modification, suspension, or discontinuance of all or any portion of the Tapjoy Publisher Services. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions will remain in full force and effect. In case of any conflict or inconsistency among these Terms of Service, the terms contained in an applicable Order Summary, any amendment to the Terms of Service or Order Summary, or the Guidelines, the terms of the applicable amendment shall govern and control, followed in precedence by the applicable Order Summary, these Terms of Service, and followed then by the Guidelines. Any preprinted terms on any other transactional or other document issued in connection herewith (including, without limitation, purchase orders, RFPs, bills of lading, etc.) are per se null and void and of no force or effect. The following sections of these Terms of Service shall survive expiration or termination of this Agreement: Sections 3.5, 4, 5, 6 (with respect to any payment obligations existing as of the effective date of termination or expiration), and Sections 7 through 20. Neither party shall be responsible for failure to perform hereunder due to a cause beyond its reasonable control, including, without limitation, terrorism, fire, civil disturbance, war, rebellion, earthquake, flood and similar occurrences, provided that performance shall resume as soon as commercially practicable after the cause no longer prevents performance. The use of headings herein is for convenience only and is not intended as nor shall it be used as an aid to interpretation.
Tapjoy Publisher Terms of Service updated February 16, 2016.