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StartApp Publisher Agreement
Please read the following and make sure you fully understand these terms and conditions. By clicking on ‘accept terms’ and registering to our service you are accepting these terms and are bound to them. If you do not agree to all or parts of these terms you may choose not to use or access the StartApp services. Whereas, the parties wish one or more of StartApp’s software development kits to be integrated into Publisher’s application and that Publisher shall publish the integrated application to end users to allow such end users to view ads. Whereas, the parties wish that StartApp shall collect money from StartApp’s ads’ suppliers , shall pay a certain fee to Publisher as provided herein, and shall retain the rest;
Now therefore, it is hereby agreed as follows:
Developer / Publisher – An app Publisher registered to the Services pursuant to the terms of this Agreement.
StartApp – Startapp Inc. and any of its assignees and successors.
Services – Facilitating End Users to view ads through their mobile devices.
Website – StartApp’s website at www.StartApp.com.
End User – A person or entity that has downloaded an Integrated Application from an application store.
Application – an application developed by Publisher.
Integrated Application – an Application in which the StartApp SDK is embedded or in which StartApp displays ads.
SDK/StartApp SDK - a software development kit provided by StartApp to Publisher pursuant to the terms of this Agreement, as may be updated by StartApp from time to time in its sole discretion.
As a condition to using the Services, Publisher shall be required to register with StartApp and enter Publisher's email address. During such registration process, Publisher agrees to provide true, current and complete information and to promptly update the information. If Publisher provides information that is, or StartApp believes is, untrue or inaccurate, StartApp may suspend or terminate Publisher's account.
During the process of subscribing to the Services, Publisher will designate personal and exclusive user name and password which are essential for Publisher’s access to Publisher ’s account. Publisher shall keep the user name and password in strict confidence and shall not reveal them to any third party. Publisher acknowledges that Publisher shall be responsible for all activities that occur under Publisher's user name and password, whether or not authorized by Publisher. StartApp will not be liable for any loss or damage arising from Publisher's failure to comply with this provision, and shall not be liable for actions taken by others who access Publisher’s account.
3. Parties’ Obligations
In connection with the performance of the Services, StartApp will provide Publisher with an SDK, with a unique Publisher ID to serve as an identifier for revenue created. Once Publisher implements the StartApp SDK in its Application, and once the End User downloads the Integrated Application to its device ads will be presented within the application. In respect of mobile devices, Publisher acknowledges that the StartApp SDK may require additional permissions that Publisher’s Application may not originally require.
It is the Publisher’s responsibility to publish the Integrated Application on one or more application stores. Each application store besides Google Play or iTunes requires StartApp’s permission.
It is the Publisher’s responsibility to comply with the terms and conditions applicable to each application store where the Integrated Application is published. StartApp does not warrant or guarantee that use of the StartApp SDK as part of the Integrated Application will comply with the requirements of any application store’s terms and conditions, and StartApp shall have no liability to Publisher for any costs, liabilities, or damages incurred to Publisher as a result of such noncompliance.
4. Accepted applications
StartApp reserves the right to reject/remove from its Service any type of Application in StartApp’s sole discretion. To prevent rejection from the Service, please refer to StartApp’s Application Policy.
5. Payment terms
Subject to Publisher’s compliance with its obligations hereunder and as a sole and absolute consideration StartApp will pay Publisher based on a revenue share model. Publisher shall bear any and all taxes in connection with any payments made to Publisher pursuant to this Agreement. In the event that pursuant to any law or regulation, tax is required to be withheld at source from any payment made to Publisher, StartApp shall withhold said tax at the rate set forth in the certificate issued by the appropriate taxing authority and provided to StartApp by Publisher, or in the absence of such certificate, at the rate determined by said law or regulation.
Earnings reports are presented in the Publisher’s portal. Based on such report, StartApp shall remit payment to Publisher within thirty (30) days of the end of the applicable calendar month. Payment shall be made via payment options offered in the portal. StartApp reserve the right to update the payment alternatives at any time.
Payments will be based on actual performance of non-incentivized ads. StartApp reserves the right to require Publisher to present a valid and eligible live applications which generated reported downloads and impressions and complies with StartApp’s app policy.
6. Reporting measures
StartApp’s books and records shall constitute final evidence regarding downloads and impressions of the Integrated Applications counted by StartApp for the purpose of calculating the consideration due to Publisher hereunder.
StartApp Disclaimer of Warranties - Publisher agrees that the Services, the StartApp SDK and all content on the Website are provided “As Is„ and without warranty of any kind, either express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose or non-infringement. StartApp does not warrant the results of use of the Services, , and Publisher assumes all risk and responsibility with respect thereto.
Publisher Warranties - Publisher represents and warrants to StartApp that: (i) it is a business and not a consumer; (ii) Publisher has the right, power and authority to enter into this Agreement and perform Publisher's obligations under this Agreement, and if Publisher is an individual (i.e., not a corporation), Publisher is over the age of eighteen (18); (iii)Publisher is the owner of the Application designated in connection with the use of Services or is legally authorized to act on behalf of the owner of such Application for the purposes of this Agreement; (iv) Publisher's Application and any material displayed therein comply with all applicable laws, statutes, ordinances and regulations, do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories, and are not hate-related in content.
8. Limitation of Liability
IN NO EVENT SHALL STARTAPP BE LIABLE TO PUBLISHER OR ANY OTHER PERSON FOR ANY DAMAGES RELATING TO INFRINGEMENT OR FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF STARTAPP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. STARTAPP’S ENTIRE AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE), SHALL BE LIMITED TO THE NET REVENUES ACTUALLY RECEIVED BY STARTAPP IN CONNECTION WITH THE INTEGRATED APPLICATION DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE OF THE RELEVANT CLAIM. STARTAPP SHALL NOT BE LIABLE TOWARDS PUBLISHER IN THE EVENT THAT ANY APPLICATION STORE SHALL NOT ALLOW THE DOWNLOAD OF THE STARTAPP SDK.
Publisher agrees to indemnify, hold harmless and defend StartApp and its shareholders, subsidiaries, directors, officers, employees and agents from and against any action, claim, demand, dispute, or liability, including reasonable attorney’s fees and costs, arising from or relating to: (i) Publisher's breach of this Agreement including any misrepresentation of Publisher, (ii) any negligence or willful misconduct of Publisher; (iii) any allegation that the Application infringes a third party’s patent, copyright, trademark or other proprietary or intellectual property right, or misappropriates a third party’s trade secrets due to an act or omission of Publisher; or (iv) any action or conduct of StartApp undertaken pursuant to this Agreement resulting in a third party claim against StartApp and due to an act or omission of Publisher. Publisher agrees that StartApp shall have the right to participate in the defense of any such claim through counsel of its own choosing.
This agreement may be terminated by any party, with or without a reason, by providing the other party with a 24 hours prior written notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, warranties, disclaimers, limitations of liability, confidentiality and intellection property. StartApp reserves the right to terminate this agreement and suspend Service to any Publisher immediately in the case where Publisher breached this Agreement.
Each party agrees that it may be provided by the other party with information that is confidential and proprietary to that other party or a third- party, which (i) is in written, recorded, graphical or other tangible form and marked “Proprietary„, “Confidential„ or with a similar legend denoting the disclosing party’s proprietary interests therein, or (ii) is in oral form and identified by the disclosing party as proprietary or confidential at the time of oral disclosure, with subsequent confirmation in writing within 30 days of such disclosure, or (iii) is of apparent proprietary or confidential nature (“Confidential Information„). Without derogating from the above, StartApp’s rates are considered confidential. Each party may use Confidential Information received from the other party only in connection with and to further the purposes of this Agreement. Confidential Information shall not be commingled with information or materials of others and any copies shall be strictly controlled. The receiving party undertakes that it shall treat and maintain the Confidential Information as confidential, and hold all such Confidential Information in trust and confidence for the disclosing party, utilizing at least the same degree of care the receiving party uses to protect its own confidential information, but not less than reasonable degree of care. The receiving party shall not disclose any Confidential Information disclosed by the disclosing party to any third party or to officers, directors, employees or contractors of the receiving party, except to officers, directors, employees or contractors who have to be so informed on a “need-to-know„ basis in order to carry out the purpose of this Agreement and, which are bound by confidentiality obligations not less rigorous than those contained herein. Confidential Information shall not include information which the receiving party can show through written evidence: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third-party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or (iii) that the receiving party had in its possession prior to the date of this Agreement; or (iv) that is independently developed by the receiving party without use of, or reference to, the Confidential Information of the disclosing party. Upon termination of this Agreement, or upon written request by StartApp, Publisher must destroy or return to StartApp any Confidential Information provided by StartApp under this Agreement. This section shall survive termination of this agreement for any reason.
12. Intellectual Property
The SDK is and shall remain the sole proprietary of StartApp and the Publisher acknowledges it has no right to use the SDK or modify it in any way unless explicitly provided otherwise herein. All materials displayed or performed on or accessible through the Website or Services including, but not limited to the StartApp SDK, are protected by copyright. Publisher shall abide by all copyright notices, information, and restrictions contained in any content accessed in connection with the Services. Publisher shall not decompile, disassemble, decrypt, extract or otherwise reverse engineer or attempt to reconstruct or discover any source code of, or any underlying ideas in, the StartApp SDK.
[If Publisher has comments on the Services or the SDK or ideas on how to improve them, he may contact StartApp. By doing so, Publisher also grants StartApp a perpetual, royalty-free, irrevocable, transferable license, with right of sublicense, to use and incorporate Publisher’s ideas or comments into the Services or the SDK (or third party software, content, or services), and to otherwise exploit Publisher’s ideas and comments, in each case without payment of any compensation].
Publisher grants StartApp his approval to use Publisher’s name, Publisher’s Application name, and Publisher's Application icons and images for use in StartApp’s marketing and display on StartApp Website.
Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property.
13. Further Terms
Publisher must comply with the respective application store:
Google Play Business and Program Policies and Google ad policy https://developer.android.com/distribute/googleplay/policies/ads.html
App Store Review Policy
Independent Contractors: The parties and their respective personnel are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
Assignment: Publisher may not assign any of its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, and any attempt to do so shall be deemed void and/or a material breach of this Agreement. StartApp may assign this agreement without Publisher’s consent.
Waiver: No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
Severability: If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
Notice: All notices shall be in writing and shall be deemed to be delivered when received by e-mail. All notices to StartApp shall be sent to email@example.com, and all notices to Publisher shall be sent to the email address supplier by Publisher at registration, or to such other address as either party may, from time to time, designate by notice to the other party.
Amendment: StartApp may amend this Agreement at any time. In a case where a change to this agreement is made, StartApp will post a notice on its Website, or send a notice to Publisher via email.Publisher agrees to review this Agreement prior to each use and by continuing use or continued use of the Services, agrees to any modifications made to this Agreement by StartApp.
Law: This Agreement shall be governed in all respects by the laws of the State of New York without regard to its conflict of law’s provisions. Exclusive venue for any dispute shall be 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.
Force Majeure: If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
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. In case of any discrepancy between this Agreement and the Website or Website links, this Agreement shall control the Website links and Website and the Website links shall control the Website.
The Publisher must not edit, resize, modify, filter, obscure, hide, make transparent or reorder any advertising (including their associated links) supplied by the StartApp Service.