[Last updated: May 14 2018]
Subject to the Agreement, the Advertiser may access and participate in Company’s advertising network currently made available at: https://portal.startapp.com (“Site”) which includes the following (collectively the “Service”): (i) display and deliver of advertising materials, including text, images, video, ads, content, photo, sounds, graphics, music, logos and any other materials or content promoting the goods and services or mobile application, software, etc. provided by Advertiser (“Advertisement” or “Ads”). the Ads may be provided by either Company or Advertiser (as applicable and as agreed between the parties) and shall be displayed and presented on various digital assets such as: mobile app or mobile browsers (“Inventory”) provided by Company’s third party partners (“Publishers” or “Developers”), all, for the purpose of promoting and displaying the Ads to Publisher’s end users (collectively, each a “Campaign”); and (ii) Company shall provide you with access to an online dashboard (“Advertiser Account” or “Account”) enabling you to obtain daily statistic information and gain important insights per each Campaign, including without limitations, statistical information regarding end users’ click, install, subscription, sale, impression, download, etc. as well as payment information, if applicable (i.e., solely with respect to Self-Service Advertiser, as defined below).
ACCEPTANCE OF THE TERMS: By signing up, filling in your information and clicking “SIGN UP” (or any similar language) or by using our Services, you acknowledge that you have read, understood and agreed to the Terms. You agree to be bound by these Terms and to comply with all applicable laws and regulations, including industry best standards, regarding your use of the Services. You further acknowledge that these Terms constitute a binding and enforceable legal contract between the Company and you. IF YOU DO NOT AGREE TO ALL OR PART OF THE TERMS HEREIN PLEASE DO NOT CLICK THE “SIGN UP” OR USE THE SERVICES IN ANY MANNER. YOU WILL NOT BE PROVIDED WITH THE SERVICES UNLESS AND UNTIL YOU HAVE AGREED TO BE BOUND BY THE TERMS. The Services are available only to either individuals that are at least thirteen (13) years old or to companies that are appropriately licensed and otherwise legally permitted to conduct business.
- Scope of Service. Subject to the terms herein, the Company shall promote and distribute the Advertisers’ apps, goods and services by launching applicable Campaigns. The Advertisement may be provided either by Advertiser, subject to Company’s prior written approval (“Advertiser Materials”) or, upon Advertiser’s request, by the Company (“Company Creative”), all as agreed between the parties. Company reserves the right to reject or remove Advertiser or Advertiser Materials (in whole or in part), with or without cause or reason, at any time, without liability, including, without limitation, if Company suspects that the Advertisement or apps, goods and services promoted by Advertiser do not comply with this Agreement or applicable laws. Notwithstanding the above, it is hereby clarified that the Company does not have any obligation to monitor the Advertisement or apps, goods and services promoted by Advertiser, for any purpose and is not responsible for the accuracy, completeness, appropriateness, legality or applicability of such, which are solely under Advertiser’s liability. In addition, and subject to the terms and conditions of this Agreement, Company grants Advertiser a revocable, limited, non-exclusive, non-transferable non- assignable and non-sub licensable license, during the term of this Agreement, to access and use the Service solely for the purpose of this Agreement. Further, Advertiser acknowledges and agrees that: (a) the timing, location and frequency in which the Advertisement are displayed and distributed shall be determined by Company at its sole discretion and subject to the provisions of this Agreement; (b) the Advertisement may be displayed on the Inventory in conjunction with other products or content; (c) the Company does not have any obligation to monitor any materials or content available via the Inventory or Campaign. Company has no control over and is not responsible for any Publisher Inventory, including, but not limited to any alleged fraudulent activity performed by the Publisher. The Advertiser assumes all responsibility and risk, and the Company hereby disclaim any and all liability to Advertiser or any third party related thereto; and (d) the Company has no control over the identity of the end users exposed to the Campaign, the way such end users may interpret the Advertisement, and the effectiveness of the Campaign. THE COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSS INCURRED TO ADVERTISER, END USER OR ANY OTHER PERSON AS A RESULT OR IN CONNECTION WITH THE SERVICE OR ADVERTISEMENT.
Company retains the right, at its sole discretion, to: (a) determine the scope of the Service provided to the Advertiser, or otherwise the features, settings or other tools which are available as part of the Service; (b) modify, upgrade or update the Service or make any other changes to the Service; (c) cease the operation of the Services or any part thereof, temporarily or permanently, without liability to the Advertiser; and (d) suspend, remove, restrict or disable Advertiser’s access to parts or all of the Service or Advertisement at any time at Company’s sole discretion. In no event will the Company be liable for the suspension, removal, and restriction or disabling of the Advertiser’s access and the Advertiser acknowledges that the Company has no obligation to provide support, maintenance, updates, upgrades or modifications of or to the Service.
- License Grant. Subject to the terms and conditions of this Agreement, Advertiser hereby grants to Company and Publishers a royalty-free, worldwide right and license to use, reproduce, transmit, technically modify, distribute, present, display and otherwise use all or part of Advertisement, including the Advertiser Materials, Advertiser’s logo, trademarks, tradenames, copyrights, images, app description, screenshots, etc., for the purpose of promoting the Advertiser, its services, apps, products and goods, as applicable to each Campaign and solely for the purpose of this Agreement (“License”). The Advertiser, Advertisement, and Campaign Terms (as defined below), including any updates and modifications therein, shall be pre-approved by Company prior to the launch of each and every Campaign. Advertiser shall provide Company with all applicable documentation and creative necessary to provide the Service. The Advertiser, or any third party on its behalf, shall not: (i) copy, execute or perform publicly, make available to the public, reduce to human readable form, emulate, sell, resell, lease, rent, lend, sublicense, make any commercial use, process, adapt, translate, modify, reproduce, map out, reverse engineer, decompile, unlock, reverse compile, disassemble or create derivative works of the Service; (ii) remove any notices or copyright information; (iii) interfere with or disrupt the operation of the Service, or the servers or networks that host or connect with the Service, or make them available; (iv) forward any data generated from or in connection with the Service without the prior written consent of the Company (v) use the Service for any illegal, immoral or unauthorized purpose; and (vi) use the Company name or any other trademarks or service marks of Company.
- Intellectual Property. The Services, including the Company Creative and any part thereof (“Company Property”) is the sole proprietary of Company and protected by copyright, trademark and other intellectual property laws and treaties. All rights related to the Company Property are owned solely by Company or its licensors and this Agreement does not convey any title or ownership rights to Advertiser. Except as provided herein, the Company retains all right, title and interest in and to the Company Property, including without limitation any derivatives, improvements and modifications thereto, and all intellectual property rights therein. Advertiser shall abide by all copyright notices, information, and restrictions contained in any content accessed in connection with the Company Property. Notwithstanding the above, the Advertiser grants the Company his approval to use the Advertiser’s name, Advertiser Materials, icons and images for use in Company’s marketing and display on Company Site or for the purpose of providing the Service including, without limitations, by creating the Company Creative. Subject to the license grant to Company in accordance with this Agreement, Advertiser shall retain all right, title and interest in and to the Advertiser
- Representations and Warranties. Each party represents and warrants to the other party that: (a) the Agreement constitutes a valid and legally binding obligation of it, enforceable against it, in accordance with its terms; (b) it has the full corporate right, power and authority to enter into this Agreement and its’ obligations hereunder; and (c) the execution of this Agreement does not and will not violate any agreement to which it is a party or by which it is otherwise bound. Further, Company represents and warrants that during the term of this Agreement, the Service and the Company Creative are and will be wholly owned or validly and legally licensed by it and it does not knowingly infringe or violate any rights of any person or entity. The Inventory, Company Creative and Service are provided “AS-IS”. Except as expressly provided in the Agreement and to the fullest extent allowable by law, Company makes no other warranty of any kind, whether express, implied, statutory or otherwise, including, without limitation, warranties of merchantability and fitness for a particular use or non-infringement, or those arising in the course of or connected to its performance hereunder, and disclaims any such warranties. In addition, Company does not represent or warrant that: (i) the Service and Inventory or any content and technology available therein will be error free or that any errors will be corrected; (ii) the operation of the Service or any technology available therein (including the Inventory and the Company Creative) will be uninterrupted; or (iii) the Advertiser will profit or derive any economic benefit from Advertiser’s use of the Service. In addition, Company uses industry standards of data security measures, however Company does not and cannot guarantee that storage of any data pertaining to the Advertiser or end users data will be secured at all times, and Company shall not be responsible for unauthorized access to or alteration to the Advertiser or any other person’s data or information from or in connection with the Advertiser. The Advertiser hereby represents and warrants that: (a) it owns or has the valid legal right or license to use and distribute the Advertiser Material to the extent required or contemplated hereunder, and the Advertiser Material do not and will not, during the term of the Agreement, infringe or violate any Intellectual Property Right or any other right of any person or entity; (b) it is the solely responsible for the Advertiser Materials and any content or technology that may be reached or linked via the Advertiser Material; (c) the Advertiser Material placed on the Inventory shall comply with any and applicable laws, regulations and industry best standards, including without limitations requirements by applicable app stores (i.e., Google Play, App Store, etc.) (“App Store”); (d) it will not use or employ any misleading, fraudulent or inappropriate practices that may deceive the end user or use any non-human, automated and fraudulent means to increase revenues nor shall perform or authorize or encourage any third party to, directly or indirectly, generate impressions, clicks, conversions or other actions with respect to the Advertiser Materials through any automated, deceptive, fraudulent or otherwise invalid action related to the services including, without limitations, repeated manual clicks, the use of “robots”, spiders or other automated tools or fraudulent use of other search engine optimization services or software, false representation, or any illegal or otherwise invalid for end users to take actions with respect to the services (collectively “Fraudulent Activity”); (e) the Advertiser Materials shall not contain any content that: (i) violates any applicable law rules or regulation including, without limitation, the Children’s Online Privacy Protection Act of 1998 (“COPPA”) and CAN-SPAM Act of 2003 (“CAN-SPAM”); (ii) is in violation of this Agreement; (iii) hacks or interferes with the Inventory or any part thereof, or interfere with the operability of third-party programs, apps or software on the end user’s device, including removes, disables, deactivates or uninstalls the applications and products previously installed on the end user’s device; (iv) encourages or incentivizes the end users to visit, click or use the Advertisement or any related or linked content for the purpose of generating actions, revenues in an illegal manner; or (v) has adversely affect public or private, infrastructure or equipment use, endorsement or promotion of content which is adult content, pornographic, sexual, obscene, excessively profane, racist, ethnically offensive, threatening, infringing, excessively violent, libelous, gambling and gambling-related (including games of skill that offer prizes of cash or other value), or discriminatory activity, promotes illegal drugs or arms trafficking, counterfeiting money, violates export control laws, offensive, misleading or deceptive material, or is any type of malware or spyware, contain any viruses, Trojan horses, worms, time bombs or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information (all collectively “Prohibited Content”). Further, the Advertiser represents it is not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and Advertiser is not listed on any list of U.S. Government with respect to prohibited or restricted parties. Notwithstanding the above, it is hereby clarified Company does not have any obligation to monitor Advertiser’s location or any restrictions applicable to the Advertiser.
- Payments and Reporting. Subject to the Terms, the Advertiser shall pay Company as detailed in Exhibit A attached herein.
- Term & Termination. This Agreement shall commence on the date in which the Advertiser accepts these Terms or uses any part of the Service and will continue until terminated as follows: (a) each party may terminate this Agreement by providing the other party with a 48 hour prior written notice.; or (b) in the event of prepaid Campaign, this Agreement shall terminate automatically when reached the budget and accordingly been fully spent; or (c) Company shall be entitled to terminate this Agreement immediately without previous notice in the event that Advertiser breaches the terms of this Agreement. Upon the termination of this Agreement, for any reason: (a) all rights and License granted herein shall be terminated immediately; (b) Advertiser’s right to use the Service or Company Creative or any part thereof shall cease immediately; and (c) the Campaign shall terminate, and Company shall remove the Advertisement from the Inventory. Following the termination of the Agreement, any provisions that in order to fulfill their purpose need to survive the termination, shall survive.
- Disclaimer and Limitation of Liability. USE OF EACH PARTY’S SERVICE IS AT THE OTHER PARTY’S SOLE RISK. NEITHER PARTY IS LIABLE FOR ACTS OR OMISSIONS OF OTHER SERVICE PROVIDERS, THIRD PARTY SERVICES, EQUIPMENT FAILURE OR MODIFICATION, OR CAUSES BEYOND EITHER PARTY’S REASONABLE CONTROL. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WHATSOEVER SHALL NEITHER COMPANY NOR ITS AFFILIATES, OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, SHAREHOLDERS, AGENTS, LICENSORS OR REPRESENTATIVES, NOR ADVERTISER OR ITS AFFILIATES, OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, SHAREHOLDERS, AGENTS, LICENSORS OR REPRESENTATIVES, WITH THE EXCEPTION OF EACH PARTY’S INDEMNIFICATION OBLIGATION AS SET OUT HEREIN, BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS OR REVENUE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR THE USE OR INABILITY TO USE THE SERVICES, LOSS OF SALES, DATA, PROFIT, REVENUE, GOODWILL, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR UNAUTHORIZED ACCESS TO INFORMATION, COMPUTER DAMAGE OR SYSTEM FAILURE, SOFTWARE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, SERVICES, INVENTORY AND CLAIMS REGARDING FRAUDULENT ACTIVITY, BASED ON CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT EITHER PARTY OR AN AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITH THE EXCEPTION OF EACH PARTY’S INDEMNIFICATION OBLIGATION AS SET OUT IN THESE TERMS, AND TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY FOR AN AMOUNT EXCEEDS THE NET CONSIDERATIONS ACTUALLY PAID BY ADVERTISER TO COMPANY IN CONNECTION WITH THE SERVICES DURING THE ONE (1) MONTH PERIOD PRIOR TO THE DATE OF THE RELEVANT CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE COMPANY MORE THAN ONE (1) YEAR AFTER THE DATE OF THE APPLICABLE SERVICE.
- Indemnification. Each party (“Indemnifying Party”) shall defend, indemnify and hold harmless the other party and its respective officers, directors, employees, agents and suppliers (“Indemnified Party”) from and against any and all losses, liabilities, damages, penalties and claims and all related costs and expenses (including reasonable attorneys’ fees) related to claims by third parties resulting from the Indemnifying Party’s breach or alleged breach of this Agreement. The Indemnifying Party’s obligation to indemnify the Indemnified Party hereunder, is conditioned upon the Indemnified Party promptly notifying the Indemnifying Party, in writing, within fourteen (14) days of any such claim (however, failure of the Indemnified Party to promptly notify the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder, except to the extent the Indemnifying Party has been damaged thereby), promptly tendering the control of the defense and settlement of any such claim to the Indemnifying Party (at the Indemnifying Party’s expense and with the Indemnifying Party’s choice of counsel), and cooperating reasonably with the Indemnifying Party in defending or settling such claim including, but not limited to, providing any information or materials necessary for the Indemnifying Party to perform the foregoing. The Indemnifying Party will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to the Indemnified Party, without the Indemnified Party’s prior consent, which will not be unreasonably withheld. The Indemnified Party will have the right to participate in the settlement or defense of any such claim at its own expense.
- Confidentiality. The Service contains valuable proprietary information and trade secrets of Company and constitutes confidential information of the Company which: (i) is in written, recorded, graphical or other tangible form regardless of whether it’s marked “Proprietary”, “Confidential” or with a similar legend denoting the disclosing party’s proprietary interests therein, or not marked at all; (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; (iii) is of apparent proprietary or confidential nature; or (iv) Company’s rates (“Confidential Information”). The Advertiser undertakes and agrees that the unauthorized use or disclosure of this Confidential Information could cause irreparable damage to Company, and Company shall be entitled to seek an injunction or other equitable relief in any jurisdiction in order to enforce the provisions hereof. Advertiser and whom on its behalf, agrees not to disclose the Confidential Information to any third party unless otherwise expressly permitted by this Agreement. In addition, Advertiser shall not disclose any Confidential Information to any third party or to its officers, directors, employees or contractors, except to officers, directors, employees or contractors who have to be 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. Further, the Advertiser agrees to protect against the disclosure of the Confidential Information using reasonable security measures at least as strong as measures used by Advertiser to protect Advertiser’s own confidential information. Upon termination of this Agreement, or upon written request by Company, Advertiser must destroy or return to Company any Confidential Information. This section shall survive termination of this agreement for any reason.
- Dispute Resolution. For any dispute, you have with us, you agree to first contact us and attempt to resolve the dispute with us informally. If we were not able to resolve the dispute with you informally, and unless otherwise required by a mandatory law, we each agree by this enforceable Terms to resolve any claim, dispute or controversy arising out of or in connection with or relating to the Terms by binding and exclusively arbitration by the American Arbitration Association (“AAA”). ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND US ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. You must include your name and residence address, and a clear statement that you want to opt out of this arbitration agreement. This arbitration agreement will survive the termination of these Terms. These Terms are governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law and will specifically not be governed by the united nations conventions on contracts for the international sale of goods, if otherwise applicable. For any action at law or in equity relating to the arbitration provision of these Terms, you agree to resolve any dispute you have with us exclusively in a state or federal court located in New York, Manhattan and to submit to the personal jurisdiction of the courts located in New York County for the purpose of litigating all such disputes. Any cause of action you might have relating to Service is limited in time to one (1) year from the arising incident, and will be permanently barred afterwards. Failure of the Company to enforce any rights or to take action against you in the event of any breach hereunder shall not be deemed a waiver of such rights or of subsequent actions in the event of future breaches.
- Independent Contractors: Both parties are independent contractors under this Agreement. Nothing contained herein shall be deemed to create an employment, agency, joint venture or partnership relationship between the parties hereto or any of their agents or employees, or any other legal arrangement that would impose liability upon one party for the act or failure to act of the other party. Neither party shall have any express or implied power to enter into any contracts or commitments or to incur any liabilities in the name of, or on behalf of, the other party, or to bind the other party in any respect whatsoever. Assignment: Advertiser 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 or a material breach of this Agreement. Company may assign this Agreement at all time. 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. Entire Agreement: This Agreement sets forth the entire understanding between the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous, written agreements and discussions concerning the subject matter of this Agreement. Severability: In the event any clause of this Agreement is determined to be void or unenforceable by a court of competent jurisdiction, such clause shall be interpreted as necessary to give maximum force to the provisions thereof, and the validity and enforceability of the remainder of this Agreement shall not be affected. Minors: To use the Services, you must be over the age of thirteen (13). Company reserve the right to request proof of age at any stage so that we can verify that minors under the age of thirteen (13) are not using the Services. In the event that it comes to our knowledge that a person under the age of thirteen (13) is using our Services, we will prohibit and block such user from accessing or using the Services. Force majeure: Neither party shall be liable hereunder for any failure or delay in the performance of its obligations hereunder due to any condition beyond its reasonable control, including without limitation to, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, war and governmental action. Press Releases. Advertiser is willing to collaborate with press releases and/or be mentioned as a new client. Advertiser permits Company to display Advertiser’s application logo and description on Company’s website or any other media as part of its client list.
- Changes to the Services and this Agreement. The Company reserves the right to modify, correct or amend the Services or these Terms, without notice and at any time. We will notify you regarding substantial changes of the Terms on the homepage or we will make best efforts to send you a notice regarding such material changes to the e-mail address that you provided in the registration form. Such substantial changes will take effect seven (7) days after such notice was provided on our Site or sent by e-mail. Otherwise, all other changes to these Terms are effective as of the stated “Last Updated” date and your continued use of the Services after the Last Updated date will constitute acceptance of, and agreement to be bound by, those changes. If Advertiser does not agree to any amendment to this Agreement, Advertiser must notify the Company and the Agreement will be terminated.
- Contact us. If you have any questions or comments concerning this Agreement, you are welcome to send us an e-mail at: Support@startapp.com or at: StartApp Inc. 584 Broadway St. 12th Floor Suite 1206 New York, NY, 10012.
PAYMENTS, TERMS, REPORTS AND TRACKING
- Payments to Company shall be pre-paid unless otherwise agreed between the parties.In the event of pre-payment account, and upon Advertiser’s request for a refund, the Advertiser acknowledges and agrees that the Company reserves the right to deduct applicable fees, including, without limitations, administrative fees, PayPal fees, credit cards fees, etc., subject to the Company’s sole discretion. Advertiser’s right to a refund shall not apply in the event that Company terminates this Agreement due to Advertiser’s breach of this Agreement or in the event the account was not active for more than 6 months.
- Payments shall be made in US dollars either through credit card, PayPal or wire-transfer as agreed between the parties.
- The Company is under no obligation to perform any Service until the Consideration is received by Company in full. Unpaid charges are subject to interest of 1.5% per month on any outstanding balance, including all collection expenses. In the event of Advertiser’s failure to make payment, Advertiser will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Company in collecting such amounts.
- In consideration of the Service, Advertiser shall pay Company according to the following payment method (“Consideration”), as agreed between the parties:
- “CPM” shall mean cost per mile and impression.
- “CPC” shall mean cost per click.
- “CPI” shall mean cost per install.
- Unless explicitly approved in writing by the Company, CPA (i.e., cost per action) payment method is not available.
- In the event of CPI or CPA payment method, the Advertiser is solely responsible to provide the Company the applicable definitions and criteria and attribution window for installs or Actions (should it will be agreed between the parties in written), which will be subject to Company’s prior approval. Any revisions to the applicable definitions shall be provided to the Company’s prior approval seven (7) days in advance, all as detailed below.
- “Full Managed Advertiser” shall mean an Advertiser that has a designated account manager managing its Campaign.
- “Self-Service Advertiser” shall mean an Advertiser that registered and created an Account in which it manages its own Campaigns throughout the applicable Advertiser Account.
- The Advertiser reserve the right to determine in its sole discretion the budget, limitations, applicable Actions or installs, filters, provisions on the distribution (i.e., blacklisted Inventory, prohibited content, etc.) (Collectively “Campaign Terms”)
- The Campaign Terms shall be provided by Advertiser, at least two (2) business days in advance, either in writing (via email) in the event of a Full Managed Advertiser, or through the Account, in the event of a Self-Service Advertiser. Notwithstanding the above it is Advertiser’s sole and absolute responsibility to provide the Company with the Campaign Terms. THE COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSS INCURRED TO ADVERTISER, OR ANY OTHER PERSON AS A RESULT OF ADVERTISER’S FAILURE TO PROVIDE OR MANAGE THE CAMPAIGN TERMS.
- The Campaign Terms, including the valid Actions and installs, may be revised from time to time, solely by providing the Company with at least two (2) business days prior written notice (either by email correspondence or through the Account).
- Advertiser acknowledges that due to technical limitations and the nature of the Service, the daily advertising cost may exceed the daily budget (if applicable) by up to 20% before the Advertisement are removed from the Inventory. In such event, the excess cost shall be reduced from the total budget or any budget of any one or more of the following days of the Campaign Term, at the Company’s sole discretion, provided that the advertising cost shall in no event exceed the total budget in more than 20% out of the total budget.
Advertiser is solely responsible for payment of any taxes resulting from the acceptance of the Agreement. If any such taxes are required to be withheld, Advertiser shall pay an amount to Company such that the net amount payable to Company after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement. In addition, the Advertiser shall be responsible for all income, sales, business, or any other such form of tax, fee, license or payment due in receipt of the transfer of the property or right to use such property under all circumstances.
REPORTING AND TRACKING
The reporting and tracking shall be based on either the Company’s or Advertiser’s numbers, reports, statistics and tracking, as agreed between the parties upon registration (“Reporting Party”). In the event of CPI and CPA Campaigns the Advertiser is the Reporting Party, and it will provide the Company with access to a password protected online account, from which it shall receive daily measurements or statistics regarding applicable Campaign (“Reports”). In the event, such online account is unavailable the Advertiser will provide the Company with a daily email report with the above-mentioned information. Advertiser shall Provide with the final Reports within five (5) calendar days from the end of each calendar month during the term of this Agreement. In the event the Reports were not provided by Advertiser to the Company (including final Reports and or daily or online installs post backs) as aforementioned, from any reason, the Advertiser shall reimburse the Company with the amount equal to the average conversion rate in the last 3 days of the campaign multiplied by the amount of clicks waisted. In the event of CPC and CPM Campaigns, the Company is the Reporting Party and the Company shall provide Advertiser with daily measurements or statistics regarding applicable Campaign either through Advertiser’s Account or by providing the Advertiser with Company’s report, as agreed between the parties. Company shall provide Advertiser with the final Reports within five (5) calendar days from the end of each calendar month during the term of this Agreement.
In the event of discrepancies, the disputing party shall provide the other party with a written notice specifying the reasons for the dispute, not later than thirty (30) calendar days from receipt of Report. Following the receipt of a dispute notice the parties will cooperate, in good faith, in order to resolve any such dispute. In the event of disagreement with respect to any discrepancies, Company’s records shall prevail and be decisive. It is agreed that receipt of a dispute notice or cooperation to resolve any dispute will not affect or delay the payment of any consideration due to Company hereunder.
In the event the Advertiser suspects fraudulent activity, the Advertiser shall provide the Company with a written notice specifying the applicable claims as well as all needed documentation and details supporting its claims, including, without limitations, suspicion reasons, Publisher source, Company’s click id’s and time frame (“Fraud Notice”). The Fraud Notice shall be provided not later than thirty (30) calendar days from the time the alleged fraudulent activity occurred. The Company shall investigate the applicable claims and shall make best efforts to collect applicable funds from the Publisher and reimburse the Advertiser for payments made solely in consideration for the applicable Publisher source, in the event the Company, under its sole discretion, shall find the claims legitimate. For the avoidance of doubt, any claims with respect to low or non retention rates or other performance indications shall not constitute sufficient proof as required above. The aforesaid does not impose any liability on the Company with respect to any fraudulent activity and the Company has no liability in this regard, as stated in this Agreement
In the event of discrepancies or dispute as listed above, if the parties have not reached an agreement with respect to any disputed amounts prior to the date in which the applicable invoice should be issued, the Company will issue the invoice according to Company’s Reports and may deduct any applicable amounts (if any, according to Company’s sole discretion as detailed above) from the invoice which shall be issued following to Company’s decisions with respect to such discrepancies or disputes.
Company may at its expense, no more than twice every twelve (12) months, engage an external independent accountant (“Auditor”) to audit, during normal business hours and upon at least 10 days’ prior notice by Company to Advertiser, Advertiser’s books and records relating to this Agreement and Advertiser’s performance of its monetary obligations under this Agreement. The Auditor shall provide the Company with a written report detailing, as applicable, any discrepancies, if any, discovered. Advertiser will immediately pay any amount in discrepancy as may reasonably be determined by such Auditor following review of such report and discrepancies, and if the final report of such audit reveals an underpayment or other discrepancy of 10% or more during the relevant time period, Advertiser will also reimburse Company for all reasonable costs of the audit. Company’s right of audit under this section will continue and survive for 1 (one) year following expiration or any termination of this Agreement.
DATA PROCESSING AGREEMENT
This DPA only applies to the extent that EU Data Protection Law (as defined below) applies to the Processing of Personal Data under this Agreement, including if (a) the Processing is in the context of the activities of an establishment of either party in the European Economic Area (“EEA”) or (b) the Personal Data relates to Data Subjects who are in the EEA and the Processing relates to the offering to them of goods or services or the monitoring of their behavior in the EEA by or on behalf of a party. Notwithstanding the above, this DPA and the obligations hereunder do not apply to aggregated reporting or statistics information a party may collect from end users or provide to the other party.
- “Data Protection Law” means any and all applicable privacy and data protection laws and regulations (including, where applicable, EU Data Protection Law) as may be amended or superseded from time to time.
- “Controller“, “Processor“, “Data Subject“, “Personal Data“, “Processing” (and “Process“), “Personal Data Breach” and “Special Categories of Personal Data” shall have the meanings given in EU Data Protection Law.
- “Company Data” means data collected and shared with the Advertiser subject to the Advertiser Agreement and for the purpose of providing the service, including without limitations, IDs.
- “EU Data Protection Law” means the (i) EU General Data Protection Regulation (Regulation 2016/679) (“GDPR”); (ii) the EU e-Privacy Directive (Directive 2002/58/EC), as amended (e-Privacy Law); (iii) any national data protection laws made under, pursuant to, replacing or succeeding (i) and (ii); and (iv) any legislation replacing or updating any of the foregoing.
- “ID” means: (i) a unique identifier stored on an end-user’s device, (ii) a unique identifier generated on the basis of device information, or (iii) a resettable advertising ID associated with a mobile device or an application.
- “Security Incident” means any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data of the other party. For the avoidance of doubt, any Personal Data Breach of the other Party’s Personal Data will comprise a Security Incident.
- RELATIONSHIP OF THE PARTIES
The parties agree and acknowledge that under the performance of their obligations set forth in the Advertiser Agreement, and with respect to the Processing of Personal Data, the Company is the Data Controller and the Advertiser is the Data Processor of behalf of Company. Each party shall be individually and separately responsible for complying with the obligations that apply to it subject to the Data Protection Law. The subject-matter and duration of the Processing carried out by the Processor in connection with the Advertiser Agreement, the nature and purpose of the Processing, the type of Personal Data and categories of Data Subjects are described in Annex A.
- PROCESSING AND PROTECTION OF PERSONAL DATA
- Each party shall Process Personal Data in compliance with applicable Data Protection Law, industry standards and its obligations herein. Without derogating from the general or specific terms herein, the Advertiser hereby warrants and confirms that as of May 25, 2018 it will be compliant with EU Data Protection Law.
- In respect of the Processing of Personal Data by Advertiser in connection with the Advertiser Agreement where EU Data Protection Law applies, the Advertiser is responsible for and shall comply with applicable Data Protection Law and agrees that it shall: (a) treat all Company Data processed by it on behalf of the Company as confidential and ensure that persons authorized to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; (b) cooperate as requested by the Company and implement appropriate technical and organizational measures to enable Company to comply with any exercise of rights by a Data Subject under applicable Data Protection Law in respect of Personal Data processed by Company under the Advertiser Agreement (including, without limitation, deletion of a Data Subject’s Personal Data); (c) not access or transfer outside the EEA any Personal Data without the prior written consent of the Company; (d) provide the Company with reasonable resources and assistance as are required by the Company pursuant to Articles 32 to 36 of the GDPR; (e) by Company’s sole discretion, delete all the Company Data following the completion of the Processing, and delete existing copies unless European Union or Member State law requires storage of such; (f) make available to the Company at its request all information necessary to demonstrate compliance with the obligations herein and under Article 28 of the GDPR, including without limitation, provide the Company with a written description of the technical and organizational methods employed by Advertiser and its Sub- Processors (if any) for the Processing of Personal Data; and (g) immediately inform the Company if, in the its opinion, an instruction from the Company infringes applicable Data Protection Law.
- NOTIFICATION OF SECURITY INCIDENT
The Advertiser will notify the Company without undue delay, and, in any event within forty-eight (48) hours, upon becoming aware that an actual Security Incident has occurred. The Advertiser will, as soon as possible, provide the Company with at least the following information with respect to the Security Incident: (a) a description of the cause and nature of the Security Incident including the categories and approximate numbers of Data Subjects concerned and the categories and approximate number of Personal Data records concerned; (b) the measures being taken to contain, investigate and remediate the Security Incident; (c) the likely consequences and risks for the Company and its Data Subjects as a result of the Security Incident; and (d) any mitigating actions taken and a proposed plan to mitigate any risks for Data Subjects as a result of the Security Incident. Further, the Advertiser shall (i) immediately and without delay, take necessary steps to contain, remediate, minimize any effects of the Security Incident and to identify its cause; (ii) co-operate with the Company and provide the Company with applicable assistance and information as it may reasonably require in connection with the mitigation of the Security Incident; and (iii) immediately notify the Company in writing of any request, inspection, audit or investigation by a Supervisory Authority.
- TECHNICAL AND ORGANIZATIONAL MEASURES
The Company has implemented appropriate technical and organizational measures to protect the Personal Data as detailed herein: www.startapp.com/security. The Advertiser shall implement and maintain the technical and organizational measures and take all other measures required pursuant to Article 32 of the GDPR including all organizational and technical security measures necessary to protect against unauthorized or accidental access, loss, alteration, disclosure or destruction of Company Data, in particular where the Processing involves the transmission of data over a network, and against all other unlawful forms of Processing, and in any event, with respect to the Company Data the security measures implemented are at least as strict as the Company’s.
The Advertiser may engage with Sub-Processors and notified in writing to Company prior to this DPA. In the event the Advertiser requires to engage with additional or replace an existing Sub-Processor to process Personal Data, it shall notify the Company in writing of any intended use or replacement of a Sub-Processor (email notification to the DPO at: firstname.lastname@example.org shall be sufficient) within thirty (30) days of the engagement or replacement of the Sub-Processor concerned, unless the Company objects in writing to the proposed use or replacement of the relevant Sub-Processor within thirty (30) days of receipt of the email notification (in which case Advertiser shall not use or replace the Sub-Processor concerned in relation with the Company Data. The Advertiser shall (i) only use a Sub-Processor that has provided sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR and this DPA and ensure the protection of the rights of Data Subjects; and (ii) impose, through a legally binding contract between Advertiser and Sub-Processor, the same data protection obligations as set out in this DPA. The Advertiser acknowledges and agrees that if any Sub-Processor fails to fulfil its obligations in the contract between the Advertiser and Sub-Processor, Advertiser shall remain fully liable to the Company for the performance of the Sub-Processor’s obligations.
Upon reasonable request of the Company, the Advertiser will submit its data processing facilities, data files and documentation as reasonably needed by the Company for the purpose of auditing or inspecting the Advertiser to ensure compliance with the warranties and undertakings under this DPA (“Audit”). The Audit will be conducted (i) by the Company or any independent or impartial inspection agents or auditors agreed between the parties; and (ii) by providing reasonable notice and during regular business hours. The request will be subject to the extent permitted under applicable law.
The Advertiser shall defend, indemnify and hold the Company harmless and keep the Company indemnified, on demand from and against any and all actual or alleged claims and damages incurred by the Advertiser as a result of Advertiser’s or its employees (including without limitation any Sub-Processors) unauthorized or unlawful Processing, or accidental loss, disclosure, destruction or damage to any of the Company Data. The Advertiser shall be liable for and shall indemnify the Company from and against all damages which the Company may suffer consequent upon any breach of applicable Data Protection Law.
DETAILS OF PROCESSING ACTIVITIES
Processing carried out for the purpose of providing the services as detailed in the Advertiser Agreement and specifically for the purpose of placing advertisement within the digital assets of Company’s partners (i.e., publishers, suppliers, etc.)
Categories of data
The Personal Data of the Data Subjects in the EEA that have installed a mobile application that contains the Company SDK in which the Advertiser will display advertisement.
Types of Personal Data
Special categories of data
Solely for the purpose of providing the service and shall be deleted by Advertiser thereafter.