2The parties to these Terms & Conditions (the “Agreement”) are (i) StartApp Inc. (“StartApp”); and (ii) the advertiser participating in the StartApp advertising network (“Advertiser”). BY CLICKING THE “ACCEPT” BUTTON BELOW, ADVERTISER INDICATES ITS ACKNOWLEDGMENT THAT IT HAS READ THIS AGREEMENT AND AGREES TO BE BOUND BY AND COMPLY WITH ITS TERMS.
For purposes of this Agreement, the following terms shall have the following meanings:
1.1 “Advertising Cost” shall mean CPC multiplied by the number of clicks on the Creative displayed at the Advertising Network.
1.2 “Advertising Network” shall mean StartApp’s advertising network which includes access points owned and managed by StartApp and/or StartApp’s partners, all as may be modified, replaced, terminated or added by StartApp from time to time in StartApp’s sole discretion.
1.3 “Budget” shall mean the budget for the Campaign pre-paid by Advertiser via the StartApp Portal in accordance with this Agreement.
1.4 “Campaign” as defined in Section 2 below.
1.5 “CampaignTerm” shall mean the number of days designated by Advertiser in advance at the StartApp Portal during which the services under this Agreement shall be provided
1.6 “Creative” shall mean the banner, text ad or any other graphic item the associated links, and all other necessary creative for the Campaign.
1.7 “Confidential Information” shall mean all information and materials disclosed by either party to the other during the term of this Agreement that is either marked confidential or by the nature of the information or the circumstances surrounding its disclosure would reasonably be considered confidential. Confidential Information does not include information that (a) is already known to the receiving party at the time it is disclosed and has not been obtained wrongfully, (b) becomes known publicly without fault of the receiving party, (c) is independently developed by the receiving party, (d) is approved for release in writing by the disclosing party, (e) is disclosed without restriction by the disclosing party to a third party, or (f) is to be disclosed by court order or under applicable mandatory law; provided that in either event, the receiving party, to the extent possible, has first given prompt prior written notice to the disclosing party and made reasonable efforts to prohibit or limit such disclosure and to protect the confidentiality of any Confidential Information eventually disclosed.
1.8 “CPC” (“Cost per Click”) shall mean the cost set forth in the StartApp Portal per a single click on the Creative displayed at the Advertising Network.
1.9 “Daily Advertising Cost“ shall mean CPC multiplied by the number of clicks on the Creative displayed at the Advertising Network during a certain day of the Campaign Term.
1.10 “Daily Budget“ shall mean the portion of the Budget, as designated by the Advertiser in advance, for each day during the Campaign Term.
1.11 “Forbidden Content” shall mean sexually explicit or other adult material, violence and bullying, hate speech, impersonation or deceptive behavior, personal and confidential information, Intellectual Property infringement, illegal activities, and malicious products (including content with incentivized traffic, p2p, adware, or spyware).
1.12 “Intellectual Property” shall mean any and all service marks, trademarks, trade names, copyrights (including moral rights), patents, designs, trade secrets, knowhow, getups, and other similar proprietary rights, any improvement or update thereof, and any registrations or applications relating to any of the foregoing.
1.13 “StartApp Portal” shall mean StartApp’s portal available at http://accounts.startapp.com/General/Login.aspx
- StartApp Services
Subject to the terms and conditions of this Agreement and to StartApps’ approvals in accordance with Section 3 below, StartApp shall promote Advertiser’s products and/or services designated by Advertiser at the StartApp Portal by placing the Creative on the Advertising Network in such form and location within the Advertising Network as StartApp shall decide, at its sole discretion. Such promotion services shall be referred to as the “Campaign”. Advertiser shall not include any Forbidden Content within the Creative. Advertiser undertakes to indemnify and hold StartApp harmless from and against any claim, loss, cost, fine or expense, including reasonable attorney’s fees, arising out of Advertiser’s breach of this section. StartApp reserves the right to remove from the StartApp Portal any Creative that contains, at StartApp’s sole discretion any Forbidden Content.
Advertiser acknowledges and agrees that StartApp has no control over the identity of the users exposed to the Campaign, the way such users may interpret the Creative, and the effectiveness of the Campaign.
Each Advertiser shall be provided with a login user name and password upon registration for the StartApp services. Advertiser is solely responsible for any activity that occurs on its account and for the protection and safe use of its password. Advertiser shall not provide its password to any third party and is solely responsible for the consequences of breaching such obligation.
- Creative and Approvals
Advertiser shall submit the Creative to StartApp via the StartApp Portal. The Creative must meet the specifications provided by StartApp in the StartApp Portal. StartApp shall have the right, with or without cause, to reject the graphics, text and/or URL contained in any Creative at any time and for any reason without liability, including, without limitation, if StartApp suspects that the above consists of Forbidden Content. StartApp shall further have the right, with or without cause, to reject the Advertiser at any time and for any reason without liability, including, without limitation, if StartApp suspects that the Advertiser engages in Forbidden Content. Any modification that Advertiser wishes to make to the Creative must be submitted by Advertiser via the StartApp Portal at least two (2) calendar days in advance.
StartApp shall have the right to pull creative material of the Advertiser from Google Play or Appstore and display them in the Advertising Network.
Advertiser hereby grants to StartApp a non-exclusive, royalty-free, worldwide right and license to reproduce, transmit, distribute, display and otherwise use all or some of Advertiser’s Creative for the purpose of carrying out StartApp’s obligations under this Agreement, including, without limitation, for the purpose of running and managing the Campaign.
- Representations, Warranties and Covenants
Advertiser represents, warrants and covenants to StartApp as follows:
5.1 Advertiser has the full right, power and authority to enter into this Agreement, to grant the licenses granted hereunder and to perform the acts required by it hereunder;
5.2 The execution of this Agreement by Advertiser and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound;
5.3 When executed and delivered, this Agreement will constitute the legal, valid and binding obligation of Advertiser, enforceable against Advertiser in accordance with its terms;
5.4 Advertiser is the owner or has the right to use and license the Creative to StartApp as provided herein;
5.5 The Creative is free of any virus or other defects;
5.6 The Creative does not and will not infringe any Intellectual Property right of any third party;
5.7 In the event that Advertiser wishes to promote a mobile application, StartApp may use any creative material that exists in the Google play or Appstore under Advertiser’s application page.
5.8 Advertiser does not and will not engage in the development or promotion of Forbidden Content, and the Creative does not and will not contain any Forbidden Content.
5.9 Advertiser agrees that, in connection with its obligations under this Agreement, it shall not violate any applicable law, statue, ordinance or regulation, including, without limitation, the laws and regulations governing misleading, false or deceptive advertising, anti-discrimination, or unfair competition.
Upon the submission of the Creative, Advertiser shall pay the entire Budget in advance via paypal (either credit card or paypal account) at the StartApp Portal for advertisers. StartApp is under no obligation to perform any service until the Budget is received by StartApp in full.
- Reporting and Tracking
7.1 The calculation of the Advertising Cost shall be made by StartApp, and StartApp’s records shall constitute sole evidence as to the number of clicks on the Creative. StartApp shall provide Advertiser with final reports of its records within eight (8) calendar days from the end of each calendar month during the term of this Agreement.
7.2 In the event that Advertiser believes that there is a discrepancy in StartApp’s report, Advertiser must provide StartApp with a reasoned report of such discrepancy within three (3) calendar days from receipt of StartApp’s report; otherwise, StartApp shall not be liable for such discrepancy. StartApp shall review Advertiser’s report, and in the event of disagreement with respect to any discrepancies, StartApp’s records shall prevail and be decisive.
- Term and Termination
8.1 Automatic Termination: This Agreement shall terminate automatically when the Advertising Cost has reached the Budget and accordingly been fully spent.
8.2 Daily Automatic Termination: During each day of the Campaign Term, upon reaching the Daily Budget, StartApp will remove Advertiser’s Creative from the Advertising Network, and will re-post it on the Advertising Network on the next day of the Campaign Term. Advertiser acknowledges that due to technical limitations and the nature of the services, the Daily Advertising Cost may exceed the Daily Budget by up to 20% before the Creative is removed from the Advertising Network. In such event, the excess cost shall be reduced from the Daily Budget of any one or more of the following days of the Campaign Term, provided that the Advertising Cost shall in no event exceed the total Budget. For illustration purposes only: If Advertiser’s total Budget is US$1000 the Campaign Term is 10 days, and the Daily Budget is US$100: The Daily Advertising Cost may reach up to US$120 before the removal of the Creative from the Advertising Network. In such event, the exceeding US$20 amount shall be reduced, at StartApp’s sole discretion, from any one or more of the following days’ Daily Budget, and the Campaign shall be removed from the Advertising Network once the Advertising Cost during the Campaign Term reaches US$ 1,000. Advertiser waives any claim against StartApp or any one on StartApp’s behalf in connection with this Section 8.2.
8.3 In the event that an Advertiser creates a new Budget with respect to an existing Campaign and provides new funds accordingly, all existing terms and obligations shall remain applicable with respect to the new Budget and the Campaign shall be immediately continued.
8.4 Termination for Convenience: Each party shall be entitled to terminate this Agreement, at any time, by providing the other party with a forty eight (48) hour prior written notice. For the avoidance of doubt, all obligations and rights shall continue to apply until the expiration of such forty eight (48) hours, and all Advertising Cost exceeding the Daily Budget pursuant to the terms of Section 8.2 above during such forty eight (48) hours, if any, shall not be refunded by StartApp.
8.5 Termination for Cause: StartApp shall be entitled to terminate this Agreement immediately without previous notice in the event that Advertiser breaches the terms of this Agreement and fails to cure such breach within one (1) calendar day of being notified of such breach.
8.6 Refund: Upon termination of this Agreement, Advertiser may file a request for refund, which shall be reviewed by StartApp. If, according to StartApp’s records, on the effective date of termination the Budget exceeds the Advertisement Cost, StartApp shall refund such excess amount within forty eight 30 days from the date StartApp accepts the Advertiser’s request. Advertiser’s right to a refund shall not apply in the event that StartApp terminates this Agreement due to Advertiser’s breach of this Agreement.
8.7 Effect of Termination: Upon termination of this Agreement, the Campaign shall terminate, and StartApp shall remove the Creative from the Advertising Network.
8.8 Survival: Notwithstanding anything to the contrary herein, Sections 5, 7, 8, 9, 10, 11, 12, 13 and 14 shall survive termination or expiration of this Agreement for any reason.
8.9 To opt out please contact us at firstname.lastname@example.org
- Intellectual Property
9.1 StartApp and its licensors own and shall retain all right, title and interest in and to the StartApp Portal and the Advertising Network, including all Intellectual Property rights embodied therein.
9.2 Subject to the license grant to StartApp in accordance with Section 4 above, Advertiser and its licensors own and shall retain all right, title and interest in and to the Creative, including all Intellectual Property rights embodied therein.
9.3 Without derogating from the above, each party acknowledges the other party’s ownership in its respective Intellectual Property and agrees it will do nothing inconsistent with such rights.
Advertiser shall indemnify and hold harmless StartApp and its affiliates, directors, officers, employees, and agents from and against any claims, actions, suits, liabilities, losses, damages, judgments, settlements, costs and expenses (including reasonable attorney’s fees) associated with any claim or action by third parties (collectively a “Claim”), to the extent such Claim arises from, or is connected with, any misrepresentation or any breach of any representation, warranty, or on the part of Advertiser, including, without limitation, claims of infringement of any Intellectual Property rights or other right of a third party. StartApp agrees to provide Advertiser with (i) prompt written notice of the Claim, to the extent feasible, (ii) sole control over the defense or settlement of such Claim (provided that Advertiser shall not, without StartApp’s prior written consent, settle any such Claim if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of StartApp or imposes any obligation on StartApp other than a monetary obligation that is payable in full by Advertiser under this Section 10) and (iii) reasonable information and assistance in the defense and/or settlement of any such Claim at Advertiser’s expense.
The parties agree that Confidential Information provided under this Agreement will be held and maintained in confidence and each party will use at least the same degree of care to protect the Confidential Information of the other party that it utilizes to protect its own confidential information, but in no event less than reasonable care. The receiving party may use the Confidential Information only for the purposes for which it was disclosed. Confidential Information may be disclosed by the receiving party only to affiliates, employees, agents and contractors with a need to know, and to its auditors and legal counsel, provided in each case they are under a written obligation or duty to keep such information confidential using standards of confidentiality not less restrictive than those required by this Agreement.
- Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED BY STARTAPP ON AN “AS IS” BASIS AND STARTAPP EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES WITH RESPECT THERETO, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND RESULTS TO BE OBTAINED BY STARTAPP AND ADVERTISER IN CONNECTION WITH THE USE OF ANY STARTAPP SERVICE. WITHOUT LIMITING THE FOREGOING, STARTAPP EXPRESSLY DISCLAIMS ANY WARRANTIES THAT ACCESS TO OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
- Limitation of Liability
EXCEPT WITH RESPECT TO WILLFUL MISCONDUCT, GROSS NEGLIGENCE, INDEMNIFICATION, AND CONFIDENTIALITY PROVISIONS HEREUNDER, UNDER NO CIRCUMSTANCES SHALL STARTAPP BE LIABLE TO ADVERTISER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF STARTAPP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE SERVICES PROVIDED HEREIN. ANY AND ALL CLAIMS IN THIS RESPECT ARE EXPRESSLY WAIVED. EXCEPT WITH RESPECT TO WILLFUL MISCONDUCT, GROSS NEGLIGENCE, INDEMNIFICATION, AND CONFIDENTIALITY PROVISIONS HEREUNDER, STARTAPP SHALL NOT BE LIABLE IN ANY EVENT TO ADVERTISER FOR MORE THAN THE TOTAL ADVERTISING COST CHARGED TO ADVERTISER DURING THE TERM OF THIS AGREEMENT. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST STARTAPP MORE THAN ONE YEAR AFTER THE DATE OF SERVICE. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITIONS OF LIABILITIES STATED HEREIN.
14.1 Non-Exclusivity. The relationship between the parties is non-exclusive and this Agreement shall not restrict either party form engaging in any promotion or advertisement relationship with any third party.
14.2 StartApp is Independent Contractor. StartApp is an independent contractor of Advertiser. This Agreement does not create any employment, agency or partnership relationship between the parties. Neither party shall have the right, power or authority to obligate or bind the other in any manner whatsoever, except as otherwise agreed to in writing.
14.3 Press Releases. Advertiser is willing to collaborate with press releases and/or be mentioned as a new client. Advertiser permits StartApp to display Advertiser’s application logo and description on StartApp’s website or any other media as part of its client list.
14.4 Entire Agreement. This Agreement constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.
14.5 Amendment. StartApp reserves the right at any time to amend this Agreement in its sole discretion. StartApp will notify Advertiser of any such amendment. This Agreement, as amended, will be effective 2 calendar days after the posting of any amended terms on the StartApp Portal. If Advertiser does not agree to any amendment to this Agreement, Advertiser must notify StartApp and the Agreement will be terminated.
14.6 Law and Venue. This Agreement shall be governed by the laws of the State of New York. Jurisdiction and venue for any suit or proceeding arising under or in connection with this Agreement or the relationship of the parties shall lie exclusively in the competent courts in the State of New York. Nothing in this Section shall be deemed to limit the parties’ right to seek interim injunction relief in any court of law.
14.7 Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of internet service providers, riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
14.8 Assignment. StartApp shall be entitled to assign this Agreement, without obtaining the written consent of Advertiser, to any entity that controls, that is controlled by, or that is under common control with, StartApp, as well as to any entity acquiring all or substantially all of the shares or assets of StartApp, whether by way of a merger, a share transaction, an asset transaction, or otherwise. Advertiser may not assign or transfer any of its rights or obligations under this Agreement to a third party without the prior written consent of StartApp.
14.9 Notices. All notices shall be in writing and shall be deemed to be delivered two (2) calendar days after sending. All notices to StartApp shall be sent email@example.com
14.10 , and all notices to Advertiser shall be sent to the email address supplied by Advertiser at registration, or to such other address as either party may, from time to time, designate by notice to the other party.
14.11 No Waiver. A waiver of any breach of this Agreement is not a waiver of any other breach. Any waiver will be in writing and signed (or sent via email) by an authorized representative of the waiving party.
14.12 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remainder of the provisions shall remain in full force and effect. The invalid or unenforceable provision shall be modified so as to render it enforceable while giving effect, as nearly as possible to the original intent of the parties.