This Publisher Agreement (“Agreement”) governs your engagement with StartApp Inc. or other entity in StartApp Group (“StartApp,” “we” “our”), for using StartApp Solution, and is a legally binding and enforceable agreement between you (“Publisher” or “you”) and StartApp
ACCEPTANCE OF THE TERMS: By signing up, filling in your information and clicking “SIGN UP” (or any similar language) or by using or downloading our SDK or Services you acknowledge that you have read, understood and agreed to this Agreement. You agree to be bound by this Agreement and to comply with all applicable laws and regulations regarding your use of the Services and/or StartApp Solution. You further acknowledge that this Agreement constitute a binding and enforceable legal contract between StartApp and you. IF YOU DO NOT AGREE TO ALL OR PART OF THIS AGREEMENT HEREIN PLEASE DO NOT CLICK THE “SIGN UP”, DOWNLOAD, OR USE THE SERVICES IN ANY MANNER. The Services are authorized to be used by Publishers who are at least thirteen (13) years old or entities that are appropriately licensed and otherwise legally permitted to conduct business.
This Agreement may be changed from time to time. Substantial changes will take effect 30 days after an initial notification is posting at: . Other changes will take effect 7 days after their initial posting. However, if this Agreement is amended to comply with legal requirements, the amendments will become effective immediately upon their initial posting, or as required. The most up-to-date Agreement is accessible at the following link: . Notwithstanding the foregoing, your continued use of StartApp Solution or the Services will be deemed acceptance to amended or updated terms. StartApp recommends that you print out or save a local copy of this Agreement for your records together.
All capitalized terms that are defined in Appendix A to this Agreement, will have the same meaning when used in this Agreement.
1.1. in order to start using the Service, you must first register and create your account (“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.
1.4. We may use your email and/or phone number provided to us during your registration to the Service (whether as an individual or on behalf of an entity) for the purpose of sending you marketing messages and materials as well as operational messages. If pursuant to the laws apply to you, your consent for such messages is required, by providing your email and/or phone number you hereby grant us your consent.
1.5. You may not assign or transfer your rights or delegate your duties under the Account, including your user name and password, without the prior written consent of StartApp. You must notify StartApp immediately of any unauthorized use of your Account or any other breach of security.
2. Scope of Service
2.1. Subject to the terms and conditions of this Agreement, you may access, download, implement, integrate and use: (i) StartApp SDK, currently made available at: https://portal.startapp.com within Publisher App(s); (ii) Advertisement(s) licensed and provided to StartApp by its various third-party partners (“Advertiser(s)”); (iii) ad-network server enabling the display of Advertisement(s); and (iv) the Account enabling you to access StartApp Solution dashboard and view, monitor and obtain information regarding the End Users’ actions, payment information, statistical information regarding the usage of the App by end users, etc. (collectively the “Service”).
2.2. We may, at our sole discretion: (a) determine the scope of the Services provided to the Publisher or otherwise, the features, settings or other tools which are available to the Publisher as part of the Service; (b) modify, correct, amend, update (including automatically updating the SDK version), enhance, improve, remove, replace or make any other changes to, or discontinue, temporarily or permanently, the Service (or any other part of StartApp Solution); or (c) cease the operation of the Service or any part thereof, temporarily or permanently without liability to the Publisher.
3. License Grant
Subject to the terms and conditions of this Agreement:
3.1. StartApp grants Publisher with a revocable, limited, non-exclusive, non-transferable non-assignable and non-sub licensable license, during the term of this Agreement, to: (i) download access and use StartApp SDK within Publisher App; and (ii) use the Services for the purpose of placement of Advertisement(s) on Publisher App (together: “Publisher License”).
4. Third Party Service and Advertisement
4.1. As part of the Service, StartApp shall enable the promotion of Advertisers’ goods and service by placing Advertisement on Publisher Inventory (“Third-Party Services”). The frequency, timing and category in which the end user is presented with the Advertisement shall be subject to the Publisher’s request (i.e., the Publisher may choose the type of Ad Unites, frequency and timing via the Account or the applicable account manager designated to it by StartApp).
4.2. Publisher’s use of the Advertisement and the Third-Party Services, inducing the any exchange of data between the Publisher and the Advertiser, is solely between the Publisher and applicable Advertiser. When using the Service and placing the Ads, Publisher grants access to the App or other Publisher Inventory and collection of data from end users as needed for the purpose of placing the Ads. Some Third-Party Services may also contain cookies or other tracking mechanisms. StartApp has no control over and is not responsible for any Third-Party Service. The Developer assumes all responsibility and risk of use of any Third-Party Services and it hereby disclaim any and all liability to the Publisher or any third party related thereto.
5. Payment and Reports
5.2. It is clarified that the payments will be based on actual performance of non-incentivized, compliant Ads and end user’s valid actions and interactions with the Third-Party Services. StartApp’s Reports, books and records shall constitute final evidence regarding actions, downloads, clicks and impressions by end user and StartApp reserves the right to withhold payment or charge back Publisher’s for any revenue generated from fraudulent activity or invalid activity, as determined by StartApp in its discretion, during any applicable pay period.
5.3. Publisher shall bear any and all taxes in connection with any payments made to Publisher pursuant to this Agreement. In the event that pursuant to any law or regulation, tax is required to be withheld at source from any payment made to Publisher, StartApp shall withhold said tax at the rate set forth in the certificate issued by the appropriate taxing authority and provided to StartApp by Publisher, or in the absence of such certificate, at the rate determined by said law or regulation.
6. Publisher Undertakings
Publisher acknowledges, undertakes and agrees to the following:
7. End User Data Collection and Disclosures
The text will be accompanied with a “Continue” button, which when clicked will be referred as grant of consent for StartApp to collect, process, use and share of end user data, for the purpose of personalized advertising, and a “No Thanks” button, which when clicked will be referred as a refusal to grant such consent (“no consent”). The text and its buttons’ design will be determined by StartApp.
Publisher will immediately and truly report to StartApp the “consent” or “no-consent” choice of each end user and “opt out” further decision of end users, using dedicated API provided by StartApp.
8. Intellectual Property Rights
8.1. StartApp Solution and any part thereof is StartApp’s sole and absolute proprietary and is protected by copyright, trademark and other intellectual property laws and treaties. All rights related to StartApp Solution are owned solely by StartApp or its licensors and this Agreement does not convey any title or ownership rights to Publisher. Except as provided herein, and subject to Publisher License, StartApp retains all right, title and interest in and to StartApp Solution and related technology, features, marks, logos and content, including without limitation any derivatives, improvements and modifications thereto, and all intellectual property rights therein. Publisher shall abide by all copyright notices, information, and restrictions contained in any content accessed in connection with StartApp Solution and the Services.
8.2. Publisher Inventory and any part thereof is Publisher’s sole and absolute proprietary and is protected by copyright, trademark and other intellectual property laws and treaties. All rights related to Publisher Inventory are owned solely by Publisher or its licensors and this Agreement does not convey any title or ownership rights to StartApp. Except as provided herein, and subject to StartApp License, Publisher retains all right, title and interest in and to Publisher Inventory and related technology, features, marks, logos and content, including without limitation any derivatives, improvements and modifications thereto, and all intellectual property rights therein.
9. Representations and Warranties
Each party represents and warrants that: (a) the Agreement constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms; (b) it has all requisite corporate power and authority to execute, deliver, and perform its obligations under the Agreement; and (c) the execution of the Agreement or the performance by it of its obligations under the Agreement do not and will not violate any other obligation or agreement, law or regulation by which it is bound or to which it is subject. StartApp represents and warrants that during the term, the Service is and will be wholly owned or validly and legally licensed by it and it does not infringe or violate any rights of any person or entity.
During the term of this Agreement and for a period of one (1) year thereafter, each Party (“Receiving Party”) agrees that it will not disclose or use any Confidential Information of the other Party (“Disclosing Party”) without the Disclosing Party’s prior written consent. The Receiving Party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own Confidential Information to prevent the disclosure of the Disclosing Party’s Confidential Information other than to its employees, affiliates, subsidiaries or other agents who must have access to such Confidential Information for Receiving Party to perform its obligations or exercise its rights hereunder, who will each agree to comply with this section.
11. No Warranty
11.1. StartApp Solution is provided by StartApp “AS-IS”. Except as expressly provided in this Agreement 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; (iii) Publisher will profit or derive any economic benefit from usage of StartApp Solution; or (iv) any specific content, service or feature will be made available through the Service.
11.2. StartApp has no obligation to provide support, maintenance, updates, upgrades, modifications, or new releases of StartApp Solution, including the SDK or any parts thereof.
11.3. StartApp uses industry standards of data security measures, however StartApp does not and cannot guarantee that storage of any data pertaining to Publisher 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 or to Publisher Inventory.
Publisher agrees to defend, indemnify and hold harmless StartApp Group, from and against any and all claims, damages, losses, costs and expenses (including but not limited to reasonable attorney’s fees) (each, “Claims”) brought or made by any person against StartApp Group arising from: (i) Publisher’s use of the Service and any part thereof in any manner inconsistent with or in breach of this Agreement; (ii) Publisher or the applicable Inventory violates any third-party’s right, privacy or Intellectual Property rights; and (iii) Publisher’s negligence or willful misconduct.
StartApp will notify Publisher in writing in regard of a Claim, tendering the control of the defense and settlement to Publisher (at the Publisher’s expense and with its choice of counsel), and cooperating reasonably with the Publisher in defending or settling such Claim including by providing any necessary information or materials. Publisher will not enter into any settlement or compromise of any Claim, which settlement or compromise would result in any direct or indirect liability to StartApp without StartApp’s prior consent, which will not be unreasonably withheld, including in any of the following events: (a) a Claim relates to StartApp’s technology; (b) any relief other than monetary damages is sought against StartApp; or (c) there may be a conflict of interest between Publisher and StartApp. StartApp will have the right to participate in the settlement or defense of any Claim at its own expense
13. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WHATSOEVER SHALL NEITHER STARTAPP NOR PUBLISHER NOR THIER AFFILIATES, OR RESPECTIVE EMPLOYEES, OFFICERS, SHAREHOLDERS, AGENTS, LICENSORS OR REPRESENTATIVES, BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY 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 THIS AGREEMENT, 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. OTHER THAN FOR CLAIMS BROUGHT UNDER SECTION 12 (INDEMNIFICATION), 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 TO PUBLISHER BY STARTAPP IN CONNECTION WITH THIS AGREEMENT AND/OR ANY SERVICE PROVIDED BY STARTAPP TO PUBLISHER 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.
14. Term and Termination
14.1. Term. This Agreement will commence on the date in which Publisher accepts these Terms or uses any part of the Service and will continue in perpetuity unless it is terminated as set forth herein.
14.2. Termination. This Agreement may be terminated by either party, with or without a reason, by providing the other party with a 48 hours’ prior written notice. This Agreement shall automatically expire if Publisher removes StartApp SDK from Publisher App (provided however that, it is acknowledged and agreed that StartApp may continue providing the Services to End Users who do not update Publisher App version and continue to use StartApp SDK thereof).
Without derogating from the above, StartApp may immediately suspend, limit or terminate access to the Service and/or the Account, if StartApp determines, at its sole discretion, that Publisher has breached any term of this Agreement, in addition to any other remedies that may be available to StartApp under any applicable law.
Additionally, StartApp may at any time, at its sole discretion, cease the operation of the Service or any part thereof, temporarily or permanently. StartApp does not assume any responsibility with respect to, or in connection with the termination of the Service operation and loss of any data.
For non-SDK, Publisher acknowledges and agrees that StartApp may, at its sole discretion and without prior notice, terminate, suspend or pause any campaign promoted with above 100K clicks with no installs logged, or, alternatively, holding a CR below 0.30%. Alternatively, Publisher will be charged a cost of $0.0003 per click.
14.3. Effect of Termination. Upon expiration or termination of this Agreement, for any reason, and unless stated otherwise in this Agreement: (a) all rights and licenses granted herein shall be terminated immediately; (b) Publisher’s right to use the Service or any part thereof shall cease immediately; and (c) Publisher will cease distributing the SDK and remove it from Publisher App.
14.4. Survival. The following Sections, provisions or undertakings, as well as all other provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall survive any termination or expiration of this Agreement: Sections 7.4 (Survival); 8 (Intellectual Property); 10 (Confidentiality); 11 (No Warranty); 12 (Indemnification); 13 (Limitation of Liability); 14.3 (Effect of Termination); this Section 14.4 (Survival); and 15.3 (Dispute Resolution).
15.1. Independent Contractors. The 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 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.
15.2. Assignment. Neither Party will assign any of its rights or obligations under this Agreement to any person or entity, and any attempt to do so shall be deemed void or a material breach of this Agreement, 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 this Agreement within StartApp Group.
15.3. 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 this Agreement 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 this Agreement, 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.
15.4. No Third-Party Beneficiary. This Agreement shall be binding on and inure to the benefit of each of the Parties and their respective successors and assignees. This Agreement or any other engagement between the Parties in regard of the Services are not 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 this Agreement.
15.5. Age Limit. To use StartApp Solution (including the Services), 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 eighteen (18) are not using StartApp Solution. In the event that it comes to our knowledge that a person under the age of eighteen (18) is using StartApp Solution, we will prohibit and block such user from accessing or using StartApp Solution.
15.6. 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.
15.7. 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.
15.8. 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.
15.9. 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.
15.10. 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.
Last update: January 20, 2019
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“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.
“App Content” means data, information, graphics, links, web pages, signs, images, software and code, files, texts, photos, audio or video, sounds, visual works, musical works, works of authorship, and components displayed or used within the App.
“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.
“End Users” means an individual, which downloads, visits or uses Publisher Inventory.
“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.
“Mobile App(s)” means any customized software/mobile application which is developed and designed for displaying on mobile phone device.
“Publisher App” means mobile apps owned, developed by or licensed to Publisher.
“Publisher Inventory” means Mobile App(s) or mobile sites owned, developed by or licensed to the Publisher.
“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) when displayed may be considered a criminal offense or could give rise to civil liability, or violates any applicable law; or (m) 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.
“StartApp” or “StartApp Group” means StartApp Inc. and any entity which, directly or indirectly, being controlled StartApp Inc.
“StartApp SDK” or “SDK” means StartApp’s owned and developed software developer kit which is designated for installation or embed in mobile apps, and it is used, inter alia, for collection of end users data and placement of Advertisements.
“StartApp Solution” means (i) StartApp SDK; and (ii) platform which engages requests for Advertisements’ display (such as from the Publisher) and Advertisements provided to StartApp inter alia by advertisers and Advertisements networks.