ADVERTISER AGREEMENT GENERAL TERMS
Last update: December 30, 2018.
These StartApp Advertiser Agreement General Terms (“General Terms”) govern your engagement with StartApp Inc. or other entity in StartApp Group (“StartApp,” “we” “our”), in an Order (or Orders) for using StartApp Solution, subject to these General Terms, and are a legally binding and enforceable agreement between you (“Advertiser” or “you”) and StartApp.
Subject to these General Terms, you may access, participate in or use StartApp Solution available to you at: https://portal.startapp.com, for the purpose of: (i) displaying and delivering of Advertisements provided by either StartApp or you (as applicable and as agreed between StartApp and you), which shall be displayed and presented on StartApp Inventory or third parties Inventory, for the purpose of promoting and displaying the Advertisements to end users (collectively, each a “Campaign”); and (ii) access to an online dashboard (“Account”), which enables 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 otherwise using StartApp Solution, you acknowledge that you have read, understood and agreed to these General Terms. You agree to be bound by these General Terms and to comply with all applicable laws and regulations, including industry best standards, regarding your use of StartApp Solution. You further acknowledge that these General Terms constitute a binding and enforceable legal contract between StartApp and you. IF YOU DO NOT AGREE TO ALL OR PART OF THESE GENERAL TERMS HEREIN PLEASE DO NOT CLICK THE “SIGN UP” OR USE STARTAPP SOLUTION IN ANY MANNER. StartApp Solution is 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. If you are an individual who consent to these terms on behalf of a legal entity, you represent and warrant that you have the authority to bind that entity to these terms and your consent to these terms will be treated as the consent of the entity. In that event, “Advertiser”, “you” or “your” will refer and apply to that entity. You also consent to the use of: (a) electronic means to consent to and complete the Order and these General Terms and to provide you with any notices given pursuant to these terms; and (b) electronic records to store information related to these General Terms and your use of StartApp Solution.
We may change these General Terms from time to time. Changes will take effect and bind you within 30 days as of publishing at: https://www.startapp.com/policy/advertiser-terms/. We will make reasonable commercial efforts to notify you of any updates to these General Terms by making such updates available on StartApp Website. Notwithstanding the foregoing, your continued use of StartApp Solution will be deemed acceptance to amended or updated terms. StartApp recommends that you print out or save a local copy of these General Terms for your records together with the business agreement or partner agreement, as applicable to you.
All capitalized terms that are defined in Appendix A to these General Terms, will have the same meaning when used in these General Terms.
1.1. In order to start using StartApp Solution you must first register and create an Account. During the registration, you undertake to provide accurate and complete information. If you provide information that is untrue or inaccurate, StartApp may suspend or terminate your Account.
1.2. During the process of registering, you will designate personal and exclusive user name and password which are essential for your access to your Account. You are solely and fully responsible for maintaining the confidentiality of the password and username of your Account and for all activities that occur under your Account.
1.3. You may not assign or transfer your rights or delegate your duties under the Account without the prior written consent of StartApp.
1.4. You must notify StartApp immediately of any unauthorized use of your Account or any other breach of security.
1.5. If you wish to either change your user name or password or any information therein you may do so by logging into your Account and going to “settings”. If you wish to cancel and remove your Advertiser Account, you may contact us with such specific request.
- Scope of Service
2.1. Advertiser has the right and responsibility to determine Campaign’s budget and Campaign Restrictions (which shall include: applicable actions or installs, filters, provisions on the distribution, blacklisted Inventory and prohibited content, as available to you; Collectively: “Campaign Terms”).
2.2. Campaign Terms shall be submitted by Advertiser, and thereafter may be amended or updated, by submission of a request by Advertiser to StartApp at least two (2) business days in advance, either in writing (via email) in the event of a Managed Advertiser, or through Advertiser’s account (in the event of a Self-Service Advertiser). Campaign Terms (or amended or updated Campaign Terms) shall be in force if accepted by StartApp and can be technically supported by StartApp Solution. StartApp 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. StartApp is not liable for the Inventory (including its content, functionality and features), and will make commercially reasonable efforts to offer Inventory complaint with the Traffic Restrictions agreed by the Parties in the Order.
2.3. 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 StartApp’s sole discretion, provided that the advertising cost shall in no event exceed the total budget in more than 10% out of the total budget.
2.4. StartApp has no obligation to provide support, maintenance, updates, upgrades or modifications to StartApp Solution (including the Service).
- License Grant
Subject to the terms and conditions of the Order and these General Terms:
3.1. Advertiser hereby grants StartApp and Publishers a royalty-free, worldwide right and license to (i) use, reproduce, transmit, technically modify, distribute, present, display and otherwise use all or part of Advertiser Materials, for the purpose of providing the Services, including any updates and modifications therein; and (ii) use, present and display Advertiser’s brand name, trademark, icons and images, for use in StartApp’s marketing materials and display on StartApp Website or other media, press releases and posted client list during the Order term and thereafter.
Advertiser shall provide StartApp with all applicable documentation and creative necessary to provide the Service. StartApp may modify Advertiser Materials if approved by Advertiser in writing (such approval may be granted per Advertiser Material, category of Advertiser Materials and/or per campaign (email will suffice for approval).
3.2. StartApp grants Advertiser a revocable, limited, non-exclusive, non-transferable, non-assignable and non-sublicensable license, during the Term, to access and use the Service solely for the purpose of displaying and promoting Advertiser Materials.
3.3. StartApp retains the right, at its sole discretion, to: (a) determine the scope of StartApp Solution (including the Service) including its features, settings or other tools available through StartApp Solution; (b) modify, upgrade or update or make any other changes to StartApp Solution; (c) cease the operation of StartApp Solution thereof, temporarily or permanently without liability to the Advertiser; and (d) suspend, remove, restrict or disable Advertiser’s access to parts or all of StartApp Solution or Advertisement at any time at StartApp’s sole discretion.
- Advertiser’s Undertakings
4.1. Advertiser acknowledges and agrees that: (a) the timing, location and frequency in which the Advertisement are displayed and distributed shall be determined by StartApp at its sole discretion and subject to the provisions of the Order and these General Terms; (b) the Advertisement may be displayed on the Inventory in conjunction with other Advertisements, products or content; (c) StartApp does not have any obligation to monitor any materials or content available via the Inventory, Advertisements or campaigns, including Advertiser’s Materials; and (d) subject to Section 5.3 (Invalid Traffic), StartApp has no control over and is not responsible for any Inventory, including, but not limited to any alleged Invalid Traffic performed by Publisher(s); and (e) StartApp has no control over the identity of end users exposed to the Campaign, the way such end users may interpret the Advertisement, and the effectiveness of the Campaign.
4.2. The Advertiser hereby undertakes, represents and warrants that: (a) it owns or has the valid legal right or license to use and distribute Advertiser Materials to the extent required hereunder, and the Advertiser Materials do not and will not, infringe or violate any Intellectual Property right or any other third party’s rights; (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) Advertiser Materials will not include any Prohibited Content; (d) Advertiser Material will comply with any and applicable laws, regulations and industry best standards, including without limitations the Children’s Online Privacy Protection Act of 1998 (“COPPA”) and CAN-SPAM Act of 2003 (“CAN-SPAM”) and any requirements or guidelines of applicable App Stores; (e) 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; (f) for Self-Service Advertiser: it is solely and fully responsible for maintaining the confidentiality of the password and username of its account, if any, and for all activities that occur under the account. It will not transfer or assign its account’s password, even temporarily, to a third party without StartApp’s prior consent, and will notify StartApp immediately of any unauthorized use of its account or any other breach of security; (g) 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 (h) it is not listed on any list of U.S. Government with respect to prohibited or restricted parties.
4.3. Advertiser agrees that StartApp shall have the right to reject or remove any Advertiser Material(s) if Advertiser Material(s) includes or leads to content which includes Prohibited Content, do not comply with the terms of the Order or these General Terms or violate any applicable laws. StartApp will make commercially reasonable efforts to notice Advertiser with respect to such rejection or removal. it is acknowledged that StartApp does not have any obligation to (a) monitor Advertiser Materials and is not responsible for their accuracy, completeness, appropriateness, legality or applicability, which are all under Advertiser’s sole liability; and (b) monitor Advertiser’s location or any restrictions applicable to the Advertiser.
4.4. Advertiser, or any third party on its behalf, will 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 StartApp; (v) use the Service for any illegal, immoral or unauthorized purpose; and (vi) use the StartApp name or any other trademarks or service marks of StartApp.
- Reporting, Tracking & Dispute
5.1. The reporting and tracking shall be based on either StartApp’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 StartApp 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 StartApp 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 the Order. In the event the Reports were not provided by Advertiser (including final Reports and or daily or online installs post backs) as aforementioned, from any reason, the Advertiser shall reimburse StartApp with the amount equals 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, StartApp is the Reporting Party and StartApp shall provide Advertiser with daily measurements or statistics regarding applicable Campaign either through Advertiser’s account or by providing the Advertiser with StartApp’s report, as agreed between the Parties. StartApp shall provide Advertiser with the final Reports within five (5) calendar days from the end of each calendar month during the term of the Order.
5.2. In the event of discrepancies, the disputing party shall provide the other party with a written notice specifying the reasons for the dispute, no later than thirty (30) calendar days from receipt of Report. Following the receipt of a disputenotice the Parties will cooperate, in good faith, in order to resolve any such dispute. In the event of disagreement with respect to any discrepancies, StartApp’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 StartApp hereunder.
5.3. Invalid Traffic. In the event the Advertiser suspects fraudulent or invalid traffic or activity (“Invalid Traffic”), the Advertiser shall provide StartApp with a written notice, no later than thirty (30) calendar days from the time the alleged Invalid Traffic occurred, specifying the applicable claims as well as needed supporting documentation and details aims, including, without limitations, suspicion reasons, Publisher source, StartApp’s click ids and time frame (“Invalid Traffic Notice”). The StartApp shall investigate the applicable claims, and in the event it finds them legitimate it 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. 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 StartApp with respect to any Invalid Traffic and StartApp has no liability in this regard other than the above reimbursement.
5.4. 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, StartApp will issue the invoice according to StartApp’s Reports and may deduct any applicable amounts (if any, according to StartApp’s sole discretion as detailed above) from the invoice which shall be issued following to StartApp’s decisions with respect to such discrepancies or disputes.
Advertiser is solely responsible for payment of any taxes resulting from the Order, other than StartApp’s income tax. If any such taxes are required to be withheld, Advertiser shall pay an amount to StartApp such that the net amount payable to StartApp after withholding of taxes shall equal the amount that would have been otherwise payable under the Order. 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.
In the event of pre-payment account, Advertiser may request for a refund which will be made within ninety (90) days, subject to the following: (i) StartApp reserves the right to deduct applicable fees, including, without limitations, administrative fees, PayPal fees, credit cards fees, etc., subject to StartApp’s sole discretion; and (ii) Advertiser’s right to a refund shall not apply in the event that StartApp terminates the Order due to Advertiser’s breach of the Order or these General Terms or in the event the account was not active for more than 6 months.
- Payment Terms and Method
Payments shall be pre-paid and made in US dollars either through credit card, PayPal or wire-transfer, as agreed by the Parties. Advertiser shall pay StartApp according to the following payment method, as agreed between the parties: CPM, CPC or CPI. Unless explicitly approved in writing by StartApp, CPA payment method is not available. In the event of CPI or CPA payment method, the Advertiser is solely responsible to provide StartApp 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 StartApp’s prior approval. Any revisions to the applicable definitions shall be provided to StartApp prior approval seven (7) days in advance.
- Unpaid Charges
StartApp is under no obligation to perform or continue with the Service if Advertiser’s charges pursuant to the Order are not fully received by StartApp. Unpaid charges are subject to interest of 1% per month on any outstanding balance, in addition to reasonable collection expenses (including attorneys’ fees) incurred by StartApp in collecting such amounts, which will be paid by Advertiser.
StartApp Solution, the Service and any part thereof (“StartApp Property”) is the sole proprietary of StartApp and its Intellectual Property. All rights related to the StartApp Property are owned solely by StartApp or its licensors and neither the Order nor these General Terms convey any title or ownership rights to Advertiser. Except as provided herein, StartApp retains all right, title and interest in and to StartApp 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 StartApp Property. Advertiser grants StartApp his approval to use Advertiser’s name, Advertiser Materials, icons and images, for use in StartApp’s marketing and display on StartApp Site or other media, or for the purpose of providing the Service including, without limitations, by creating the StartApp Creative as well as StartApp’s press releases and posted client list. Subject to the license grant to StartApp in accordance with the Order and/or these General Terms, Advertiser shall retain all right, title and interest in and to the Advertiser Materials.
- Representationsand Warranties
Each party represents and warrants to the other party that: (a) the Order (including these General Terms) constitutes a valid and legally binding obligation of it, enforceable against it in accordance with their terms; (b) it has the full corporate right, power and authority to enter into the Order (including these General Terms) and its obligations hereunder; and (c) the execution of the Order (including these General Terms) does not and will not violate any agreement to which it is a party or by which it is otherwise bound.
12.2. The Parties agree to the terms of the Data Processing Agreement attached to the Order as Appendix B, which will apply to end users which are subject to GDPR or other jurisdictions which adopt the GDPR or its equivalent.
12.3. Advertiser undertakes as follows:
(a) to use end users data shared with it by StartApp only for the purpose of displaying or offering customized advertisements within the scope of the Order;
(b) to process end users’ data pursuant to any applicable law (including GDPR, where applicable);
(c) to process (including store) any personal data of end users which are subject to the GDPR either in EU or in US cloud or servers which are operated or owned by Privacy Shield compliant entities;
The Service contains valuable proprietary information and trade secrets of StartApp and constitutes Confidential Information of the StartApp. The Advertiser undertakes and agrees that the unauthorized use or disclosure of this Confidential Information could cause irreparable damage to StartApp, and StartApp 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 the Order and/or these General Terms. 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 the Order 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 the Order (or Orders), or upon written request by StartApp, Advertiser must destroy or return to StartApp any Confidential Information.
14.1. StartApp Solution is provided by StartApp “AS-IS”. Except as expressly provided in these General Terms and to the fullest extent allowable by law, StartApp makes no other warranty of any kind, whether express, implied, statutory or otherwise, including, without limitation, warranties of compatibility, availability, fitness for a particular use or non-infringement, or those arising in the course of or connected to the performance hereunder, and disclaims such warranties. In addition, StartApp does not represent or warrant that: (i) StartApp Solution, or any of its products, services or software will be error free or that any errors will be corrected; (ii) the operation of StartApp Solution or any of its products, services or software will be uninterrupted or unbreachable; and (iii) Advertiser will profit or derive any economic benefit from usage of StartApp Solution.
14.2. StartApp uses industry standards of data security measures, however StartApp does not and cannot guarantee that storage of any data pertaining to the Advertiser or end users will be secured at all times, and StartApp shall not be responsible for unauthorized access to or alteration to any data or information.
14.3. Some states or jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply to Advertiser.
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 expenses (including reasonable attorneys’ fees) related to claims by third parties resulting from the Indemnifying Party’s breach or alleged breach of the Order or these General Terms. The Indemnifying Party’s obligation to hereunder is conditioned upon the Indemnified Party promptly notifying the Indemnifying Party, in writing, within fourteen (14) days of such claim (however, failure to promptly notify 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 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 by providing any necessary information or materials. 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.
- Limitationof Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WHATSOEVER SHALL NEITHER STARTAPP NOR ADVERTISER NOR THIER AFFILIATES, OR RESPECTIVE EMPLOYEES, OFFICERS, SHAREHOLDERS, AGENTS, LICENSORS OR REPRESENTATIVES, 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, INFORMATION GOODWILL, BUSINESS INTERRUPTION, 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 THE ORDER OR THESE GENERAL TERMS, 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. 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 THE STARTAPP IN CONNECTION WITH THE ORDER AND/OR ANY SERVICE PROVIDED BY STARTAPP TO ADVERTISER DURING ONE (1) YEAR PERIOD PRIOR TO THE DATE OF THE RELEVANT CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST STARTAPP MORE THAN ONE (1) YEAR AFTER THE DATE OF THE APPLICABLE SERVICE.
- Term &Termination
17.1. Any Order shall be effective as of its submission by Advertiser and acceptance by StartApp and shall be effective until: (i) its End Date or end of budget, as agreed in the Order, including any extensions to the Order; (ii) terminated by either Party as stated below (for each Order: “Order Period”). These General Terms shall be effective during the Order Period.
17.2. Termination for Convenience. Either Party may terminate any Order by providing the other Party with a 48-hour prior written notice; or (b) in the event of prepaid Campaign, the Order shall expire automatically when reached the budget.
17.3. Termination for Cause. StartApp may suspend the Services and/or terminate any Order immediately, and without prior notice in the event that Advertiser breaches the terms of the Order and/or these General Terms.
17.4. Effect of Termination. Upon expiration or termination of the Order, for any reason: (a) all rights and License granted herein shall be terminated immediately; (b) Advertiser’s right to use the Service or StartApp Creative or any part thereof shall cease immediately; and (c) the Campaign shall terminate, and StartApp shall remove the Advertisement from the Inventory.
18.1. Independent Contractors. The Parties are independent contractors under the Order and/or these General Terms. Nothing contained herein shall be deemed to create an employment, agency, joint venture or partnership relationship between the Parties 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 on behalf of, the other Party.
18.2. Assignment. Either Party will not assign any of its rights or obligations under any signed Order and/or these General Terms to any person or entity, and any attempt to do so shall be deemed void or a material breach of the Order and/or these General Terms, other than (i) upon merger or acquisition of the assigning Party’s major assets or shares, provided that the assignee will assume all obligations of the assignor; or (ii) StartApp which may assign the Order (including these General Terms) within StartApp Group.
18.3. Audit. StartApp 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 these General Terms and Order(s) and Advertiser’s performance of its monetary obligations under this Agreement. The Auditor shall provide StartApp 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 StartApp for all reasonable costs of the audit. StartApp’s right of audit under this section will continue and survive for 1 (one) year following expiration or any termination of the relevant Order or these General Terms.
18.4. Dispute Resolution. Each Party agrees to first contact the other Party and attempt to resolve any dispute informally. If the Parties are not able to resolve the dispute informally, and unless otherwise required by a mandatory law, the Parties agree that any claim, dispute or controversy arising out of or in connection with or relating to any Order(s) and/or these General Terms will be governed by the Laws of the State of New York, United States, without regards to its conflict of laws principles, and shall be brought exclusively before the courts of Manhattan, New York.
It is further agreed that: (i) by entering into these General Terms, each of the Parties agree to waiving the right to a trial by jury or to participate in a class action; and (ii) 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 competent court may not consolidate more than one person’s claims.
18.5. No Third-Party Beneficiary. The Order and these General Terms, shall be binding on and inure to the benefit of each of the Parties and their respective successors and assignees. Neither any Order signed by the Parties nor these General Terms are made for the benefit of any third party who is not a party hereto, and only the Parties hereto or their respective successors and permitted assigns will acquire or have any benefit, right, remedy or claim under or by reason of any Order or these General Terms.
18.6. Minors. To use StartApp Solution, you must be over the age of thirteen (13). StartApp reserves 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 StartApp Solution. In the event that it comes to our knowledge that a person under the age of thirteen (13) is using StartApp Solution, we will prohibit and block such user from accessing or using StartApp Solution.
18.7. 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.
18.8. Entire Agreement. The Order and these General Terms 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 the Order and/or these General Terms.
18.9. Severability. In the event any clause of the Order and/or these General Terms 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 the Order and/or these General Terms shall not be affected.
18.10. 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.
18.11. Contact us. If you have any questions or comments concerning this General Terms or your Order, 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.
“Advertisement” or “Ad” means any sort 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., supported or facilitated by the Services. Advertisement may be created by Advertiser (or its behalf) and/or by using StartApp Creative Services,
“Advertiser Materials” means (i) Advertiser’s Ads, apps, goods, services and other creative, content, screenshots, pictures, videos, or images which Advertiser wish to promote through the Campaign; and (ii) Advertiser’s logo, trademarks, tradenames, copyrights and images.
“App Stores” means any application stores or marketplaces of Mobile Applications, including Apple’s App Store and Google Play or their equivalent.
“Campaign” means promoting and displaying Advertiser’s Materials throughout the Inventory, pursuant to the campaign parameters and restrictions.
“Confidential Information” means any proprietary, confidential and/or trade secret information of a Party, written or oral, whether or not marked or designated as confidential, whether furnished before or after the date of the Order and regardless of the manner in which it is furnished. Confidential Information may include, without limitation, information related to a Party and any of its parent, subsidiary and affiliated companies, services, data, marketing, operations, business and financial plans, policies, practices, strategies, surveys, analyses and forecasts, financial information, customer lists, Inventions (as defined below), know-how, techniques, processes, development, practices, computer readable media or other materials in whatever form, business relationships and any information which, given the totality of the circumstances, a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive. Confidential Information may be disclosed either in tangible or intangible form. Confidential Information shall not include information that (a) has become part of the public domain not as a result of a breach of any obligation owed by the receiving Party to the disclosing Party; (b) was in possession of the receiving Party prior to disclosure of the Confidential Information by the disclosing Party; (c) the receiving Party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of its undertakings for confidentiality hereunder; (d) the receiving Party can demonstrate in its records to have independently developed, without breach of its undertakings for confidentiality hereunder and/or any use of the Confidential Information; or (e) is required to be disclosed by any applicable law or regulation or any order of a court of competent jurisdiction or governmental agencies. If a particular portion or aspect of the Confidential Information becomes subject to any of the foregoing exceptions, all other portions or aspects of such information shall remain subject to all of the provisions of the Order or these General Terms.
“CPA” means cost per action.
“CPC” means cost per click.
“CPI” means cost per install.
“CPM” means cost per mile and impression.
“Creative Services” means the services which will be provided by StartApp as agreed in the Order, which may include Ads design and/or production of custom-made Ad, in accordance with Ads parameters requested by Advertiser and accepted by StartApp.
“GDPR” means General Data Protection Regulation 2016/679.
“Intellectual Property Rights” shall mean all worldwide (a) patents, patent applications and patent rights; (b) rights associated with works of authorship, including copyrights, copyrights applications, copyrights restrictions; (c) Moral Rights; (d) rights relating to the protection of trade secrets and confidential information; (e) design rights and industrial property rights; (f) rights relating to intangible property, including, without limitation: trademarks, service marks and applications therefore, trade names and packaging and all goodwill associated with the same; (g) divisions, continuation, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired; (h) all rights to sue for any infringement of any of the foregoing rights and the right to all income, royalties, damages and payments with respect to any of the foregoing rights; and (i) rights similar to those set forth. “Moral Rights” means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any similar right, existing under the law of any country in the world, or under any treaty.
“Inventory” means various digital assets licensed by Publishers, Developers and/or SSPs to StartApp for the purpose of displaying Advertisements, which will be used by StartApp to provide the Services, as will be determined by StartApp, and subject to the Traffic Restrictions agreed in the Order (if any).
“Order” means online or offline engagement of Advertiser and StartApp for the performance of Campaign throughout StartApp Solution, subject to the Campaign’s specifications and these General Terms.
“Managed Advertiser” means an Advertiser that has a designated account manager managing its Campaign.
“Mobile App(s)”s means any customized software/mobile application which is developed and designed for displaying on mobile phone device.
”Party” means either StartApp or Advertiser (together: ”Parties”).
“Prohibited Content” means any content which: (a) includes or encourages conduct that may be considered a criminal offense, could give rise to civil liability, or may violate any applicable law; (b) violates, misappropriates, or infringes any third-party Intellectual Property Rights, rights of privacy and publicity, or other proprietary or legal rights; (c) endorse or promote 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, offensive, misleading or deceptive material; (d) promotes, advocates or facilitates terrorism, terrorist-related activities or violence; (e) contains any Nazi symbols or references; (f) causes, supports or leads to installation or un-installation of a Mobile App that is generated without an accurate and conspicuous disclosure and without informed consent or any other similar practices; (g) hacking to a Mobile App or using a Mobile App in order to hack into public or private infrastructure or equipment; (h) 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; (i) materially interferes or disrupts web navigation or browsing; (j) has adversely affect public or private infrastructure or equipment use; (k) interferes with the operability of third-party programs, apps or software on the end users’ device, including removes, disables, deactivates or uninstalls the applications and products previously installed on the end user’s device; (l) hacks or interferes with the Inventory or any part thereof; (m) does not comply with age restrictions agreed in the Order; (n) when displayed in the Geo agreed in the Order may be considered a criminal offense or could give rise to civil liability, or violates any applicable law; or (o) redirecting traffic or replacing web pages or any other pages available in a Mobile App to web pages or other pages which promote content or products which may adversely affect the use of the Mobile App and/or violates any of the prohibitions contained herein.
“Publisher” or “Developer” means a third party which owns, operates or develops Mobile App(s), and is engaged with StartApp in a license agreement which authorizes StartApp to collect end user data from end users which use its Mobile App(s) and display advertisements within its Mobile App(s), all through StartApp Solution.
“Self-Service Advertiser” means an Advertiser that registered and created an Account in which it manages its own Campaigns throughout the applicable Account.
“Services” means the following actions (i) display and deliver of Advertisement displayed and presented on the Inventory; and/or (ii) Creative Services agreed by the Parties in the Order (if any).
“StartApp” or “StartApp Group” means StartApp Inc. and any entity which, directly or indirectly, being controlled StartApp Inc.
“StartApp Solution” means (i) SDK developed by StartApp and installed in Publisher or Developer Apps pursuant to its license agreement with StartApp; (ii) ad-serving platform which provides the Service: (iii) platform which engages (a) requests for Advertisements’ display on the Inventory (supply side); with (b) Advertisements provided to StartApp inter alia by advertisers and Advertisements networks (including the Advertiser).
“StartApp Website” means the domain: www.startapp.com and any subdomain of it.
Data Processing Agreement
This Data Processing Agreement (“DPA“) is an integral part of Advertiser Insertion Order and StartApp Advertiser Agreement General Terms between StartApp and Advertiser (together: “Advertiser Agreement”). Each of StartApp and Advertiser may be referred to as a ”Party”, and together as the ”Parties”; capitalized terms not otherwise defined herein shall have the meaning given to them in the Advertiser Agreement.
1.1. “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 from time to time.
1.2. “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.
1.3. “StartApp Data” means data collected by StartApp (including without limitations, IDs) and shared with the Advertiser subject to the Advertiser Agreement and for the purpose of providing the Services.
1.5. “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.
1.6. “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.
1.7. “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.
This DPA applies to the extent that EU Data Protection Law applies to the Processing of Personal Data under the Advertiser 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.
- 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:
(a) If the source of StartApp Data is from StartApp SDK (whether alone or together with other data resources), then StartApp is the Data Controller and the Advertiser is the Data Processor on behalf of StartApp;
(b) If the source of StartApp Data is from StartApp server to server integration or RTB (or their equivalent) only, for the purpose of performing the Services, StartApp is a Data Processor, acting on behalf of data suppliers engaged with StartApp (Controllers of StartApp Data) and the Advertiser is the Data Sub-Processor on behalf of StartApp.
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
4.1. Each party shall Process Personal Data in compliance with applicable Data Protection Law, industry standards and its obligations herein.
4.2. 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) cooperate as requested by StartApp and implement appropriate technical and organizational measures to enable StartApp to comply with any exercise of rights by a Data Subject under applicable Data Protection Law in respect of Personal Data processed by StartApp under the Advertiser Agreement (including, without limitation, deletion of a Data Subject’s Personal Data); (b) not access or transfer outside the EEA any Personal Data without the prior written consent of StartApp; (c) provide StartApp with reasonable resources and assistance as are required by StartApp pursuant to Articles 32 to 36 of the GDPR; (d) by StartApp’s sole discretion, delete all StartApp Data following the completion of the Processing, and delete existing copies unless European Union or Member State law requires storage of such; and (e) make available to StartApp at its request all information necessary to demonstrate compliance with the obligations herein and under Article 28 of the GDPR, including without limitation, provide StartApp 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.
- Notification of Security Incident
The Advertiser will notify StartApp 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 StartApp 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 StartApp 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 StartApp and provide StartApp with applicable assistance and information as it may reasonably require in connection with the mitigation of the Security Incident; and (iii) immediately notify StartApp in writing of any request, inspection, audit or investigation by a Supervisory Authority.
- Technical and Organizational Measures
StartApp 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 StartApp 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 StartApp Data the security measures implemented are at least as strict as StartApp’s.
Advertiser may share StartApp Data with Sub-Processors provided that (a) it will notify StartApp in advance in writing with respect to these Sub-Processors (including replacement or any change with respect to these Sub-Processors; email notification to StartApp DPO at: firstname.lastname@example.org shall be sufficient). StartApp may reasonably object in writing a proposed 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 StartApp Data); (b) each Sub-Processor will guarantee to meet the requirements of the GDPR and this DPA and ensure the protection of the rights of Data Subjects, through a legally binding contract between Advertiser and Sub-Processor, with the same data protection obligations as set out in this DPA; and (c) if any Sub-Processor fails to fulfil its obligations in the contract between the Advertiser and Sub-Processor, Advertiser shall remain fully liable to StartApp for the performance of the Sub-Processor’s obligations.
Upon reasonable request of StartApp, the Advertiser will submit its data processing facilities, data files and documentation as reasonably needed by StartApp 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 StartApp 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.
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ANNEX A (to Appendix B)
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 Inventory (digital assets of StartApp’s partners; i.e., publishers, suppliers, etc.).
Categories of data
(a) Personal Data of the Data Subjects in the EEA that have installed a mobile application that contains StartApp SDK in which the Advertiser will display advertisement.
(b) Personal Data of the Data Subjects in the EEA that shared with StartApp in its capacity as Processor by third parties which, directly or indirectly, develop, operate, own or licensee of mobile applications or advertisement space at mobile applications, 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.