[Last updated: July 2nd, 2018]
This Publisher Agreement (“Agreement”) is a legally binding and enforceable agreement between StartApp Inc. and its affiliates (“Company” or “StartApp” or “we”) and you, a developer of mobile applications (either an individual or an entity), mobile network or distributor (“Developer” or “Publisher” or “you”). The Publisher is the owner or has legal rights in certain apps (“App”), sites, platforms, network and any other digital assets which are offered to the public by it (collectively the “Inventory”) in which it wishes to implement the mobile advertising services as detailed herein below.
Subject to the Agreement, the Publisher may access, download, implement, integrate and use: (i) Company’s software developer kit owned and developed by Company (“SDK”), currently made available at: https://portal.startapp.com (“Site”) or any other applicable integration for the purpose of providing mobile advertising services; (ii) advertisement and materials (“Ads” or “Advertisement”) licensed and provided to Company by its various third-party partners (“Advertiser(s)”); and (iii) the Publisher account enabling the Publisher to access the Dashboard and view, monitor and obtain information regarding the end user’s actions, payment information, etc. (“Developer Account”) (all, collectively shall be defined as the “Service”).
ACCEPTANCE OF THE TERMS: By signing up, filling in your information and clicking “SIGN UP” (or any similar language) or by downloading our SDK or using the Service 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 regarding your use of the Service. 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”, DOWNLOAD, OR USE THE SERVICE IN ANY MANNER. YOU WILL NOT BE PROVIDED WITH THE SERVICES UNLESS AND UNTIL YOU HAVE AGREED TO BE BOUND BY THE TERMS. The Service is available only to Publisher’s who are at least thirteen (13) years old and to companies that are appropriately licensed and otherwise legally permitted to conduct business.
- Scope of Service. The Company may, at its 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, enhance, improve, remove, replace or make any other changes to, or discontinue, temporarily or permanently, the Service; or (c) cease the operation of the Service or any part thereof, temporarily or permanently without liability to the Publisher. The Publisher further acknowledges and agrees that the Company does not have any obligation to monitor any materials or content available through the Service or App (including without limitations that Advertisement) and the Company has no obligation to provide support, maintenance, updates, upgrades, modifications, or new releases of the Service. EXCEPT AS PROVIDED HEREIN, THE COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSS INCURRED TO THE PUBLISHER, AN END USER OR ANY OTHER PERSON AS A RESULT OR IN CONNECTION WITH THE SERVICES OR ADVERTISEMENT. THE PUBLISHER’S USE OF THE SERVICES AND ADVERTISEMENT ARE ENTIRELY AT ITS OWN RISK.
- License Restrictions. The Publisher shall not: (a) 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 Services except as expressly agreed herein; (b) remove any notices or copyright information from the Service; (c) use the Service for any purpose other than set forth herein; (d) distributing the App via an unauthorized App Store, further, during the registration Publisher shall provide the Company with applicable links to the Apps as available in the applicable App Store; (e) interfere with or disrupt the operation of the Services, or the servers or networks that host or connect with the Services or make them available, or disobey any requirements, procedures, policies, or regulations of such servers or networks; (f) forward any data generated from or in connection with the Service without the prior written consent of the Company or transfer or assign the Developer’s Account password, even temporarily, to a third party; or (g) use the Service for any illegal, immoral or unauthorized purpose; and (h) represent that the Developer’s App is certified or otherwise endorsed by Company and may not use the Company name or any other trademarks or service marks of Company without prior written consent. The Publisher’s failure to comply with the provisions set forth may result herein (at the Company’s sole discretion) in the termination or suspension of access to the Service (or any part or feature thereof) and may expose the Developer to civil or criminal liability.
- Required End User Disclosures. The Company is solely a service provider and has no contractual relationship or interaction with end users. As part of the binding terms of this Agreement between the Publisher and the Company, the Publisher shall prepare and enter into an agreement with each end user, which governs the relationship between the Publisher and the end user (i.e., End User License Agreement “EULA”, Terms of Service and privacy policies) (“App Terms”). The Publisher is solely responsible for the content and effectiveness of such App Terms.
IT IS HEREBY CLARIFIED THAT THE AFORESAID WORDING IS SOLELY A SUGGESTION AND SHALL NOT REPLACE ANY LEGAL ADVICE, THE PUBLISHER SHALL CONSULT WITH APPLICABLE PRIVACY CONSULTANT PRIOR TO USING THE STARTAPP SDK, THE SERVICES AND ADDING THE AFOREMENTIONED DISCLOSURES.
- Third Party Service and Advertisement. As part of the Service, Company shall enable the promotion of Advertisers’ goods and service by placing Advertisement on the Inventory (“Third-Party Services”). Publisher may choose the type of Ads (i.e., interstitial ads, banners, etc.) and its placement within the App via the Developer Account or the applicable account manager designated to it by Company. The 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 the Publisher grants access to the App or other 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. Company 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.
- Representations and Warrants. 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. The Company 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. Except as expressly provided in the Agreement and to the fullest extent allowable by law, the Service is provided “AS-IS”, the 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 or any 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 will be uninterrupted; (iii) the Publisher will profit or derive any economic benefit from it use of the Service; or (iv) any specific content, service or feature will be made available through the Service. The Publisher represents and warrant that the Publisher or Inventory will not (a) engage in, facilitate, promote, contain or advocate any content or function which may be considered as offensive, harmful, misleading, deceptive, fraudulent, indecent, pornographic, obscene, sexual, racist, threatening, excessively violent, defamatory, hate speech, gambling (including games of skill that offer prizes of cash or other value), malware, viruses or Trojan, alcohol, tobacco, prescription drugs or weapons, etc.; (b) violate any laws, rules and regulations (including COPPA regulations & EU privacy law) including the applicable App Store Terms; (c) interfere with the operability of third-party programs, apps or software on the end user’s device; (d) compensate or incentivize end user’s for clicking on any Ads or provide any benefits for downloading or installing the App or other Apps; or (e) the Publisher will not perform or authorize or encourage any third party to, directly or indirectly, generate impressions, clicks, conversions or other actions with respect to the Ads through any automated, deceptive, fraudulent or otherwise “Invalid Action” related to the services. The “Invalid Action” includes, without limitations, repeated manual clicks, the use of “robots” or other automated tools, or by using incentivized traffic, false representation, or any illegal The Company reserves the right, in its sole discretion to withhold any amount of payments based on fraudulent activity or Invalid Activity.
- Payment and Reports. Subject to Publisher’s compliance with its obligations hereunder and subject to Advertisers payment to Company, Company shall pay the Publisher based on a revenue share model (i.e., the Company shall pay Publisher a fixed percentage out of the revenues generated via the Service by displaying the Advertisement via the Inventory). The payment shall be based solely on the Company’s numbers and reports (available through the Developer Account). The payment terms may be updated or revised from time to time. Earnings reports, statistics and related data will be displayed in the Developer Account on a daily basis (“Reports”). Based on such Report, Company shall remit payment to the Publisher within thirty (30) days of the end of the applicable calendar month. Payment shall be made via payment options offered in the Developer Account, including without limitation via bank transfer, PayPal or Cryptocurrency (for more details please click here). 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. The Company’s Reports, books and records shall constitute final evidence regarding actions, downloads, clicks and impressions by end user and the Company reserves the right to withhold payment for any revenue generated from fraudulent activity or invalid activity, as determined by Company in its discretion, during any applicable pay period. The 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, the Company shall withhold said tax at the rate set forth in the certificate issued by the appropriate taxing authority and provided to Company by Publisher, or in the absence of such certificate, at the rate determined by said law or regulation.
- Term and Termination. This Agreement will commence on the date in which the Publisher accepts these Terms or uses any part of the Service and will continue in perpetuity unless it is terminated as set forth herein. This Agreement may be terminated by either party, with or without a reason, by providing the other party with a 48 hour prior written notice. Without derogating from the above, at any time, the Company may suspend or terminate access to the Service or temporarily or permanently limit, suspend or terminate the Developer Account, for any reason, at its sole discretion, in addition to any other remedies that may be available to the Company under any applicable law. Such actions by the Company may be taken, inter alia, if the Company deems that the Publisher has breached any of the Agreements in any manner. Additionally, the Company may at any time, at its sole discretion, cease the operation of the Service or any part thereof, temporarily or permanently. The Company does not assume any responsibility with respect to, or in connection with the termination of the Service operation and loss of any data. All sections of this Agreement which by their nature are intended to survive the termination of this Agreement shall survive termination or expiration of this Agreement for any reason. Upon termination, the License granted will immediately expire, and the Publisher must cease any use of the Service.
- Intellectual Property Rights. The Service, Company Data and any part thereof is Company’s sole and absolute proprietary and is protected by copyright, trademark and other intellectual property laws and treaties. All rights related to the Service are owned solely by Company or its licensors and this Agreement does not convey any title or ownership rights to Publisher. Except as provided herein, the Company retains all right, title and interest in and to the Service and related marks, logos and content, including without limitation any derivatives, improvements and modifications thereto, and all intellectual property rights therein. The Publisher shall abide by all copyright notices, information, and restrictions contained in any content accessed in connection with the Services. Notwithstanding the above, the Publisher hereby grants the Company with the license to use the Publisher’s name, the App’s name, icons and images, etc. solely for Company’s marketing purposes.
- Confidentiality. During the term of this Agreement and for a period of one (1) year thereafter, each party agrees that it will not disclose or use the Confidential Information of the disclosing party without the disclosing party’s prior written consent. Each 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 other party’s Confidential Information other than to its employees, affiliates, subsidiaries or other agents who must have access to such Confidential Information for such party to perform its obligations or exercise its rights hereunder, who will each agree to comply with this section. For the purpose of this Agreement “Confidential information” shall mean any information of the disclosing party, whether or not in tangible form, of a private, secret, proprietary or confidential nature, or treated by the disclosing party as such (including by marking such information as confidential or by informing the receiving party in writing of such disclosure of Confidential Information). Confidential information shall not include any information that the non-disclosing party can verify with substantial proof: (1) is generally available or known to the public through no wrongful act of the non-disclosing party; (2) was independently developed by the non-disclosing party; or (3) was disclosed to the non-disclosing party by a third party under no obligation of confidentiality to such party; or (4) is required by law or regulation or pursuant to judicial or administrative process to be disclosed; provided, however, that in such case the receiving party shall promptly notify the disclosing party of the details of the requirement to disclose (with supporting documentation) and allow the disclosing party a reasonable time to oppose or otherwise limit such disclosure.
- Limitation of Liability. EXCEPT AS SET FORTH IN THIS AGREEMENT, IN NO EVENT WILL COMPANY OR ITS SUBSIDIARIES, SHAREHOLDERS, DIRECTORS, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND PERMITTED ASSIGNEES (COLLECTIVELY, “COMPANY GROUP”) BE LIABLE TO THE PUBLISHER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING TO ANY DAMAGES FOR THE USE OR INABILITY TO USE THE SERVICE OR ANY PART THEREOF, LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, SYSTEM FAILURE OR COSTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICE OR ANY PART THEERIN UNDER ANY THEORY OF LIABILITY, INCLUDING FOR CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT THE COMPANY GROUP WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. IN NO EVENT SHALL THE COMPANY GROUPS’ AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNT PAID BY COMPANY TO PUBLISHER IN THE ONE (1) MONTH PERIOD PRIOR TO THE DATE OF THE RELEVANT CLAIM.
- Indemnification. The Publisher agrees to defend, indemnify and hold harmless the Company Group, from and against any and all claims, damages, losses, costs and expenses (including but not limited to reasonable attorney’s fees) (collectively, “Claims”) brought or made by any person against the Company 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) the Publisher or the applicable Inventory violates any third-party’s right, privacy or intellectual property rights; and (iii) Publisher’s negligence or willful misconduct. The Publisher shall promptly notify the Company Group of a Claim and shall have full control and sole authority over the defense and settlement of a Claim, provided, however, that any settlement will be subject to our prior approval by Company and provided further that the Publisher shall not assume the control of the defense of a Claim to the extent that determined that (a) a Claim relates to Company’s technology; (b) any relief other than monetary damages is sought against the Company; or (c) there may be a conflict of interest between Publisher and the Company. The Company Group may join in the defense of a Claim with counsel of its choice at its own expense.
- 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, we each agree by this enforceable Terms, to resolve any claim, and unless otherwise required by a mandatory law 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, USA, 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 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 herein contained 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: Publisher may not assign any of its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, and any attempt to do so shall be deemed void 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. 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. Severability: If any provision of this Agreement or any part of any provision shall be determined to be partially void or unenforceable by any court or body of competent jurisdiction or by virtue of any legislation to which it is subject or by virtue of any other reason whatsoever, it shall be void or unenforceable to that extent only and no further and the validity and enforceability of any of the other provisions or the remainder of any such provision shall not be affected by such determination.
- Changes to the Services and this Agreement. The Company reserves the right to modify, correct, amend, the Services or these Terms 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 an e-mail 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 Revised date will constitute acceptance of, and agreement to be bound by, those changes.
- 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.