FLURRY FOR PUBLISHERS MARKETPLACE TERMS OF SERVICEEffective: November 1, 2014
ACCEPTANCE OF AGREEMENT
At Publisher’s option, Publisher may use the Flurry RTB Service (defined below) in conjunction with Flurry for Publishers Marketplace and such use shall be subject to the Flurry RTB Service terms and conditions described herein.
The Flurry for Publishers Marketplace and the Flurry RTB Service are each a “Service” and collectively the “Services” under this Agreement.
To register for Flurry for Publishers Marketplace, Publisher 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 for Flurry for Publishers Marketplace, Publisher will be required to provide Flurry with its email address, user name, and password. Publisher understands that it is solely responsible for maintaining the confidentiality of its user name and password and that Publisher shall be solely and fully responsible for all activities that occur under its username and password. Flurry shall not be responsible for any loss, claim or other liability that may arise from the unauthorized use of Publisher’s user name or password. Publisher agrees to immediately notify Flurry of any unauthorized use of Publisher’s 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 Publisher’s responsibility to immediately notify Flurry and to change its user name and/or password so that Publisher’s account remains both secure and functional.
The Services are available only to individuals who are at least 18 years old and to companies that are appropriately licensed and otherwise legally permitted to conduct business. You represent and warrant to Flurry that (i) if you are an individual, you are at least 18 years old; and (b) if you are a company, you are appropriately licensed and legally permitted to conduct business.
FLURRY FOR PUBLISHERS MARKETPLACE
Description and Use
"Flurry for Publishers Marketplace" means the services and Software (defined below) that allow publishers to sell their advertising space (“Inventory”) to advertisers (“Advertisers”) in order to place their advertisements (“Ads”) within the publishers’ application(s). In order to use Flurry for Publishers Marketplace, Publisher must integrate the Flurry software development kit (the "SDK") into Publisher’s application(s). The SDK and the Flurry Analytics site code (the “Agent”), Flurry's processing code for Flurry’s Analytics Service, are defined collectively herein as "Software.” Publisher agrees that Flurry may require Publisher to use the then-current version of any and all Software in order to use the Flurry for Publishers’ Marketplace
Flurry for Publishers Marketplace Service Fees and Payment
The basic Flurry for Publishers Marketplace service is provided to Publisher free of charge. Flurry may change its fees and payment policies for Flurry for Publishers Marketplace from time to time. The changes will be posted at http://www.flurry.com (or such other URL that Flurry may provide from time to time). Publisher’s use of the enhanced features of Flurry for Publishers Marketplace requires the payment of additional fees, as described at http://www.flurry.com/solutions/publishers/flurry-publishers-pricing (or such other URL that Flurry may provide from time to time).
Advertisers and Advertisements
Publisher is solely responsible for all matters related to the Advertisers, including without limitation, handling all support services, billing and payment, and any other inquiries and disputes of any type or nature. Publisher is solely responsible for all Ads and related urls, content and subject matter, editorial, text, graphic, audiovisual, and any other information Publisher makes available in connection with Flurry for Publishers Marketplace (collectively, “Ad Content”). All Ad Content shall be subject to the Flurry’s Content Guidelines located at http://www.flurry.com/content-guidelines (the “Content Guidelines”). Flurry shall not be liable for and has no obligation to monitor or edit the Ad Content.
You represent and warrant to Flurry that: (i) you have, and will maintain during your use of Flurry for Publishers Marketplace, all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to the Ad Content in order to permit Flurry to perform the services 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 Ad Content); and (ii) the Ad Content will comply with all applicable laws, the Content Guidelines and applicable Flurry policies, and will not contain any content that is infringing, libelous, defamatory, obscene, pornographic, abusive, offensive or that otherwise violates any right of any third party.
FLURRY RTB SERVICE
To the extent Publisher chooses to use Flurry’s real-time automated auction service, Publisher agrees to the terms and conditions under this section.
Description and Use
The "Flurry RTB Service" means the automated real-time auction service that enables publishers to offer and sell their Inventory to advertisers who are media buyers in the virtual Flurry RTB Marketplace (“Flurry RTB Marketplace”) and who wish to display and serve their ads (“Buyer Ads”) on the applications that a publisher designates (“Publisher Sites”), based on the selling criteria selected by the publisher through the Flurry user interface for accessing the Flurry RTB Marketplace. You acknowledge and agree that you are solely responsible for all of your Inventory and all aspects of your Publisher Sites (including, without limitation, content and subject matter, editorial, text, graphic, audiovisual, and all other content and information).
Flurry RTB Revenue Share and Payment
The Flurry RTB Marketplace allows you to sell the Inventory on your Publisher Sites and receive a revenue share on the fees collected by Flurry from media buyers in the Flurry RTB Marketplace. If you sell Inventory via the Flurry RTB Marketplace, Flurry will pay you a percentage of the “Net Marketplace Revenue” generated by your Inventory sold via the Flurry RTB Service (“RTB Revenue Share”). The “Net Marketplace Revenue” means fees earned and collected by Flurry from third party advertisers whose Buyer Ads were served to your Inventory, less any charges for taxes, refunds, and advertising agency fees, if any.
Flurry shall send payment to you within approximately sixty (60) days after the end of the calendar month in which Net Marketplace Revenue was earned and collected, provided that Flurry will only send you a payment if your RTB Revenue Share is greater than or equal to $250 USD in your Publisher account. If Publisher owes amounts to Flurry for use of any other Service, then at Flurry’s election, Flurry may offset the RTB Revenue Share owed to Publisher by such amounts. If Publisher disputes any payment made in connection with the Flurry RTB Service, Publisher must notify Flurry in writing within thirty (30) days of any such payment.
Flurry hereby grants Publisher at no cost a nonexclusive, limited, non-transferable, revocable, royalty-free and non-sublicensable license to (i) use the Software and (ii) distribute the SDK solely as necessary to use the Services in accordance with this Agreement for the applications that Publisher owns and controls. Publisher’s use of the Services, Software and any accompanying documentation ("Documentation") is subject to the terms of the Agreement and does not include: (a) any resale, lease, rental, assignment or other transfer of rights of the Services, Software or Documentation; (b) the distribution, public performance or public display of the Services, Software or Documentation, (c) modification, revision, creation of derivative works from or otherwise making any derivative uses of the Services, Software or Documentation or any information or content therein; (d) decompilation, reverse engineering or otherwise attempting to derive the source code for the Services or Software; or (e) any use of the Services, Software or Documentation other than for its intended purpose. Flurry hereby reserves all rights not expressly granted herein. Any use of the Services, Software or Documentation 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 but not limited to, copyright, trademark and other intellectual property laws.
Publisher hereby grants Flurry a nonexclusive, limited, royalty free and revocable license to (1) host, serve, route and send the Ads to Publisher and (2) fill Publisher’s Inventory via the Services. Flurry reserves the right to remove any Ads from the Services at any time, for any reason, or for no reason.
PRIVACY AND INFORMATION COLLECTION
You agree that you will not use any Service (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 (ii) 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
In addition to any representations and warranties made under the prior sections of this Agreement, you further 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 for the purposes of this Agreement; (ii) you have and will maintain during the use of any Service all necessary rights, power, licenses and authority to enter into this Agreement and to perform the acts required of you hereunder and to permit Flurry to perform the Services contemplated under this Agreement; (iii) you have complied, and will continue to comply, with all applicable laws, statutes, ordinances, and regulations (including but not limited to, any relevant data protection or privacy laws); (iv) 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 (v) you will at all times comply with all applicable Flurry policies.
INCIDENTAL COSTS ASSOCIATED WITH USE OF THE SERVICES
Publisher agrees that it is solely liable for all costs, fees, and other expenses resulting from Publisher’s use of the Services. This specifically includes, but is not limited to, incidental costs incurred by Publisher in connection with its use of the Services, including, but not limited to, any fees owed to Publisher’s communication service providers.
Publisher agrees to indemnify, defend and hold harmless Flurry, its subsidiaries, affiliates, or any of their respective directors, officers, employees and agents from and against any and all claims, liabilities, penalties, settlements, judgments, fees and expenses (including, without limitation, reasonable legal fees and other litigation expenses) arising from (i) Publisher’s violation of the terms of this Agreement; (ii) any violation of a third party’s intellectual property rights; and (iii) any violation or failure by Publisher to comply with all laws and regulations in connection with Publisher’s use of the Services, whether or not described herein.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
You acknowledge and agree that Flurry is not affiliated with or responsible for any third-party products or services managed with the Service. Flurry neither represents nor endorses the quality, accuracy, reliability, integrity or legality of any third party products/services, nor the truth or accuracy of the description of any advertisements, links, content, advice, opinions, offers, proposals, statements, data or other information from any third party products/services (“Disclaimed Content”) that is displayed or distributed through the Services. Flurry disclaims any liability or responsibility for errors or omissions in any Disclaimed Content. Flurry reserves the right, but does not have the responsibility, to edit, modify, refuse to post or remove any Disclaimed Content, in whole or in part, that Flurry, in its sole discretion, deems objectionable, erroneous, illegal, fraudulent or otherwise in violation of this Agreement. The relationship of Flurry and Publisher is that of independent contractors.
In connection with your use of Flurry for Advertisers, you specifically agree that Flurry shall not be responsible for unauthorized access to or alteration of the User Data or data from your applications or Recommendations. You acknowledge that the availability and operation of and the Flurry Network Content made available within Flurry for Advertisers are subject to many factors outside of your control. You are solely responsible for determining whether Flurry Network Content is appropriate or acceptable to you. Flurry will store Recommendations within your applications. Such storage may result in higher data usage charges for your end users. You assume all risk and liability to the end users associated with the storage of these Recommendations and agree to notify the end users as required by law or by the carriers.
FLURRY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY REGARDING THE SERVICES, ADS, SOFTWARE, AND DOCUMENTATION TO THE FULL EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SERVICES, ADS, SOFTWARE, AND DOCUMENTATION ARE 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 THE SERVICES, ADS, SOFTWARE, OR DOCUMENTATION ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR VIRUS-FREE OR THAT THE OPERATION OF THE SERVICES, ADS OR SOFTWARE WILL BE UNINTERRUPTED. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO PUBLISHER.
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 PUBLISHER OR ANY OTHER PERSON OR ENTITY UNDER ANY THEORY FOR INDIRECT, 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 OR THE SERVICES, 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 OR THE SERVICES WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) USD OR THE AGGREGATE AMOUNT PUBLISHER HAS PAID FLURRY IN THE PAST TWELVE MONTHS FOR THE 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.
Publisher shall not, directly or indirectly, authorize or encourage any third party to (i) generate fraudulent impressions or fraudulent clicks, or (ii) take similar fraudulent actions or any other actions that interfere with, disrupt or interact in an unauthorized manner with the Service (or servers and networks connected to the Service), in the use of the Services, 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 anytime for any reason, including but not limited to because of such fraudulent activity. Publisher acknowledges and agrees that Flurry may, in its sole discretion, review impressions, click-throughs or other actions with respect to the Service, and Publisher shall not be entitled to receive any revenue share applicable to actions that Flurry determines in its sole discretion are fraudulent or improper.
INTERNATIONAL USE; EXPORT CONTROLS
Software available in connection with this Agreement 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.
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). Publisher’s continued use of any part of the Services following the posting of such changes or modifications will constitute Publisher’s acceptance of such changes or modifications.
MODIFICATIONS TO AND TERMINATION OF THE SERVICES
Flurry reserves the right to discontinue offering the Services or to modify the Services at any time in its sole discretion. If Publisher is dissatisfied with any aspect of the Agreement at any time, Publisher’s sole and exclusive remedy is to cease using the Services. Notwithstanding anything to the contrary contained in the Agreement, Flurry may also, in its sole discretion, terminate or suspend Publisher’s access to the Services at any time. Upon any termination of this Agreement, Flurry will cease providing the Services, and Publisher will delete all Software and Documentation 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 that 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 Publisher and Flurry shall be interpreted in accordance with the laws of the State of California without regard to conflict of laws principles. Publisher 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 Publisher 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 Publisher and Flurry and governs Publisher’s use of the Services, superseding any prior agreements between Publisher and Flurry with respect to the Services.
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.