Flurry For Advertisers Terms of ServiceLast Updated: November 1, 2014
Acceptance of Terms
You represent and warrant that (i), if you are an individual, you are at least 18 years old, and (ii) if you are an entity, you are appropriately licensed and legally permitted to conduct business.
Modification of Agreement
Flurry reserves the right to change or modify any of the terms and conditions contained in this Agreement at any time, in its sole discretion, by posting changes at http://www.flurry.com (or such other URL that Flurry may provide from time to time). Your continued use of Flurry for Advertisers following the posting of such changes or modifications will constitute your acceptance of such changes or modifications.
Description and Features of Flurry for Advertisers
“Flurry for Advertisers” means the advertising network and Software (as defined below) through which you purchase digital ad campaigns promoting your product or service (“Recommendations”) from Flurry for placement on Flurry's network of publisher partners or on third party network partners. Such campaigns may include promoting the install or relaunch of your application (“App Recommendations” and “Re-Engagement Recommendations,” respectively), the viewing of your video clip (“Clips Recommendations”) or display ad campaigns. Your campaigns may integrate Flurry for Advertisers rewards, an optional feature of a virtual currency system in your Recommendation as a reward for installs or views.
To register for Flurry for Advertisers, you must complete the registration process at http://www.flurry.com (or such other URL that Flurry may provide from time to time) by providing Flurry with current, complete and accurate information. Upon registration you will be required to provide Flurry with your email, password and user name. You understand and agree that you are solely responsible for maintaining the confidentiality of your user name, password and that you shall be solely and fully responsible for all activities that occur under your user name and password. Flurry shall not be responsible for any loss, claim or other liability that may arise from the unauthorized use of any password. You agree to immediately notify Flurry of any unauthorized use of your user name or password or any other breach of security in connection with this Agreement. If a user name and/or password is lost or stolen, it is your responsibility to immediately notify Flurry and to change your user name/or password, so that your account remains both secure and functional. For certain advertiser and media campaigns, you may be required to register for and integrate the Flurry software development kit ("Software") into your mobile applications.
"Content" means all materials accessible through Flurry for Advertisers, including but not limited to the Recommendations. You hereby grant to Flurry a non-exclusive, worldwide, royalty-free, transferable right to fully exploit Content (including all related intellectual property rights) and to allow others to do so in connection with Flurry for Advertisers. To the extent allowed by law, the foregoing includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as moral rights. To the extent you retain any such moral rights under applicable law, you hereby ratify and consent to any action that may be taken with respect to such moral rights by Flurry and agree not to assert any moral rights with respect thereto. Recommendations may include applications created by you and by outside developers through Flurry's use of preferred affiliate networks. You shall ensure that your Recommendations comply with all applicable laws and policies, including Flurry’s Content Guidelines at http://www.flurry.com/content-guidelines (“Content Guidelines”) and do not contain any content that is infringing, libelous, defamatory, obscene, pornographic, abusive, and offensive or otherwise violate any right of any third party. Flurry reserves the right to remove any Content at any time, for any reason, or for no reason.
Fees and Payment
your purchases of Recommendations is subject to the fees and payments as described below. Flurry may change its fees and payment policies at any time.
If you order and purchase Recommendations under the Agreement, you agree to pay (or have Flurry deduct from your Recommendation account) any and all applicable fees incurred in connection with your purchase of Recommendations at the then-current prices in effect. Such prices will be specified on Flurry's website at http://www.flurry.com or such other location as Flurry may specify from time to time. In addition, if you order and purchase App Recommendations, Clips Recommendations or Re-Engagement Recommendations, you shall pay all applicable fees for each instance in which an end-user installs and launches an App Recommendation, completes a view of the video advertisement of a Clips Recommendation, or launches a Re-Engagement Recommendation, as applicable. Pricing for such Recommendations shall be determined by a bidding process setting the price you are willing to pay per install, click or view. You may select the price you want to bid per install, click or view provided that such price is equal to or greater than the minimum bid established by Flurry. Additional fees may be charged by Flurry for mutually agreed upon enhancements to the Recommendations. Other pricing metrics or fees may apply upon mutual agreement by you and Flurry.
You shall fund your Recommendation account prior to ordering Recommendations for a minimum of $250 USD. You may do this via check or credit card. Such funds shall be drawn down as fees become due to Flurry. If you do not fund your Recommendation account and fees become due to Flurry, Flurry shall issue an invoice to you which shall be due immediately upon receipt. Notwithstanding the foregoing, Flurry reserves the right to not place the Recommendations ordered by you if your account is not funded. If your account is terminated, except for your breach, such termination will be effective immediately, and you shall receive a refund for any amounts you have pre-paid for Flurry for Advertisers that have not been rendered. In addition, you may request a partial refund of any unused amount in your Recommendations account in writing. Such requests shall be limited to once per calendar quarter.
The terms set forth in any Insertion Order (“IO”) that conflict with or are in addition to any of the terms and conditions relating to Flurry for Advertisers as set forth herein shall be void and of no effect, unless expressly agreed to by the parties in writing and signed by an officer of Flurry.
Incidental Costs Associated with Flurry for Advertisers
You agree that you are solely liable for all costs, fees, and other expenses resulting from your purchase of Recommendations or use of the Software. This specifically includes, but is not limited to, incidental costs incurred by you in connection with your purchase of Recommendations or use of the Software, including, but not limited to, any fees owed by you to your communication service providers.
Flurry hereby grants at no cost to you a non-exclusive, limited, non-transferable, revocable and non-sublicensable license to use the Software solely as necessary for you to purchase Recommendations in accordance with this Agreement. Flurry hereby reserves all rights not expressly granted herein. Any use of the Software other than as specifically authorized herein, without the prior written permission of Flurry, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark and other intellectual property laws.
You hereby grant to Flurry the limited right to utilize your company name, trademarks, service marks and/or logos for limited public relations purposes of identifying you as a customer of Flurry in any press release, marketing publication or Flurry’s website.
Privacy and Information Collection
You agree that you will not purchase Recommendations or use the Software (1) in connection with any application labeled or described as a "Kids" or "Children" application; (2) in connection with any application, advertisement or service directed towards children; or (3) to collect any personal information from children.
"Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within ten business days, indicated in writing as "confidential". Notwithstanding the foregoing, Confidential Information will not include any information (i) which is or becomes publicly known, (ii) which is already in the receiving party's possession prior to disclosure by a party or (iii) which is independently developed or collected by the receiving party without the use of Confidential Information. Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such.
Representations and Warranties
You represent and warrant to Flurry that: (i) you are the owner or legally authorized to act on behalf of the owner of each application that you designate in connection your purchase of Recommendations or use of the Software ; (ii) you have all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder; (iii) you have and will maintain during your use of Flurry for Advertisers all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to the Content to permit Flurry to perform its obligations contemplated under this Agreement (including without limitation any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of the Content); (iv) the Content will comply with Flurry’s Content Guidelines and all applicable laws and will not contain any content that is infringing, libelous, defamatory, obscene, pornographic, abusive, and offensive or otherwise violates any right of any third party; (v) you have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including, without limitation, any relevant data protection or privacy laws); (vi) you will comply with and have any and all consents, authorizations and clearances from end users to allow Flurry to collect, store, and use User Data; and (vii) you will at all times comply with all applicable Flurry policies.
You agree to indemnify, defend and hold harmless Flurry, its employees, officers and directors, or users from and against any and all claims, liabilities, penalties, settlements, judgments, fees (including reasonable attorneys' fees) arising from (i) any Content that you or anyone using your account may submit or access under the Agreement; (ii) your violation of the terms of this Agreement; and (iii) any violation or failure by you to comply with all laws and regulations in connection with your participation in Flurry for Advertisers, whether or not described herein.
Disclaimer of Warranties and Limitation of Liability
You specifically agree that Flurry shall not be responsible for unauthorized access to or alteration of the User Data or data from your mobile applications or Recommendations. You acknowledge that the availability and operation of and the Content made available within the Service are subject to many factors outside of your control. You are solely responsible for determining whether Content is appropriate or acceptable to you.
FLURRY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY REGARDING FLURRY FOR ADVERTISERS TO THE FULL EXTENT
PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
FLURRY FOR ADVERTISERS IS PROVIDED "AS-IS" AND WITHOUT WARRANTIES OF
ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF
PERFORMANCE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FURTHER, FLURRY DOES
NOT MAKE, AND HAS NOT MADE, ANY REPRESENTATION OR WARRANTY THAT
FLURRY FOR ADVERTISERS IS ACCURATE, COMPLETE, RELIABLE, CURRENT,
ERROR-FREE, OR VIRUS-FREE OR THAT THE OPERATION OF FLURRY FOR
ADVERTISERS WILL BE UNINTERRUPTED. SOME STATES DO NOT ALLOW
EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY
IN NO EVENT WILL FLURRY, ITS PARENT, SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE “FLURRY PARTIES”), BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY UNDER ANY THEORY FOR INDIRECT, ACTUAL, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS ARISING OUT OF THIS AGREEMENT, EVEN IF FLURRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. THE FLURRY PARTIES’ AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) USD OR THE AMOUNT YOU HAVE PAID TO FLURRY IN THE PAST TWELVE MONTHS FOR SUCH SERVICES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, THE FLURRY PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
You shall not, directly or indirectly, authorize or encourage any third party to take fraudulent actions or any other actions that interferes with, disrupts or interacts in an unauthorized manner with Flurry for Advertisers (or servers and networks which are connected thereto), including but not limited to, through repeated manual clicks, the use of robots, scrapers or other automated query tools and/or computer generated search requests, and/or the fraudulent use of other search engine optimization services and/or software. Flurry may terminate your account at any time for any reason, including without limitation such fraudulent activity, in its sole discretion.
International Use; Export Controls
Software available in connection with Flurry for Advertisers and the transmission of applicable data, if any, is subject to United States export control laws. No Software may be downloaded or otherwise exported or re-exported in violation of the export control laws of the United States. You agree to comply with the export laws and regulations of the United States and trade controls of other applicable countries. In cases of conflict or inconsistency among applicable export and import laws and regulations, U.S. law shall govern.
Modifications to and Termination of Flurry for Advertisers
Flurry reserves the right to discontinue offering Flurry for Advertisers or to modify Flurry for Advertisers at any time in its sole discretion. If you are dissatisfied with any aspect of Flurry for Advertisers at any time, your sole and exclusive remedy is to cease participating in Flurry for Advertisers. Notwithstanding anything contained in this Agreement to the contrary, Flurry may also, in its sole discretion, terminate or suspend your participation in Flurry for Advertisers at any time. Upon any termination of this Agreement, you will delete all applicable Software and certify thereto in writing to Flurry within five (5) business days of such termination.
Waiver and Severability
If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. The delay or failure of Flurry to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
Choice of Law and Forum
This Agreement and the relationship between you and Flurry shall be interpreted in accordance with the laws of the State of California without regard to conflict of laws principles. You and Flurry agree that any and all claims, causes of actions or disputes (regardless of theory) arising out of or relating to this Agreement or the relationship between You and Flurry will be brought exclusively in the courts of Santa Clara County, California, USA or the Northern District of California, and Publisher and Flurry consent to personal jurisdiction in those courts.
This Agreement constitutes the entire agreement between you and Flurry and governs your participation in Flurry for Advertisers, superseding any prior agreements between you and Flurry with respect to Flurry for Advertisers.
The terms and conditions contained in this Agreement that by their sense and context are intended to survive the performance hereof by the parties hereunder, including but not limited to the provisions relating to Indemnity, Disclaimer of Warranties, Confidentiality, and Limitation of Liability, shall so survive the completion of the performance, cancellation or termination of this Agreement.