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Service Agreement

Terms of Service

Your use of the Platform is governed by this License and Service Agreement (“Agreement”). This Agreement serves as the contractual agreement between you (“Company”) and Kochava, Inc., a Delaware corporation (“Free App Analytics” or “FAA”). This Agreement is effective as of the date Company activates its account (“Effective Date”). FAA and Company may be referred to herein collectively as the “Parties” and individually as a “Party.”

By signing this Agreement, electronically or otherwise, or by accessing or using the Platform, Company agrees to be bound by this Agreement and all terms and conditions incorporated by reference. If you do not agree to the following terms and conditions, do not access or use the Platform.

Table Of Contents

Section 1.0 Scope of Services
Section 2.0 Ownership
Section 3.0 Confidential Information
Section 4.0 Privacy
Section 5.0 Term & Termination
Section 6.0 Information Security
Section 7.0 Reps; Warranties; Disclaimer
Section 8.0 Indemnification
Section 9.0 Limitation of Liability
Section 10.0 General

Background

FAA provides mobile advertising measurement analytics and attribution services to marketers through its proprietary online software platform, available at FreeAppAnalytics.com. The FAA marketer integrates a single SDK into its app, website, or connected device, which enables the FAA platform to process certain electronic data relating to the installation and use of marketer’s app or website. The FAA SDK allows marketer to leverage thousands of ad publisher and network partners integrated with FAA across the globe. Marketer customizes the platform through a user interface to configure attribution and analytics, determine exactly which data it wants to capture, which analyses it wants to perform, and which reports it wants to run.

WHEREAS, in accordance with the terms and conditions of this Agreement, Company desires to grant a license to FAA to use Company Data, as defined hereunder, and FAA desires to perform mobile advertising measurement analytics and attribution services for Company.

WHEREAS, in accordance with the terms and conditions of this Agreement, FAA desires to grant a limited license to Company to access and use the Platform and Company desires to acquire analytics and attribution services via the Platform.

NOW, THEREFORE, in consideration of the following mutual covenants and agreements, and for other good and valuable consideration, the Parties hereby agree as follows:

  1. Scope of Services
    1. Services. FAA hereby grants a limited, non-exclusive, non-transferable, revocable license to Company to access and use the Platform during the Term, subject to the limitations of this Agreement. “Platform” means the Site and all related software development kits (“SDK”). “Site” means the web-based platform provided by FAA at FreeAppAnalytics.com, through which FAA renders attribution, analytics, and related modeling and reporting services, and the content thereon. “Term” has the meaning provided in Section 5.0 (Term & Termination). FAA shall make available and license to Company the SDK’s and application program interfaces (“API”) necessary for Company to fully exercise the rights and licenses granted hereunder.
    2. Account Registration. Company must register with FAA in order to use the Platform. Company must register on the Site unless FAA instructs it otherwise. The registration process requires Company to provide true, accurate, current, and complete information about Company and to create a username and password. Company agrees to use commercially reasonable efforts to maintain true, accurate, current, and complete account information. Company is solely responsibility for all activities that occur under its registration and for maintaining the confidentiality and security of its username and password.
    3. Modification of Platform. FAA may from time to time modify, remove features from, or upgrade the Platform. FAA will use reasonable efforts to notify Company of any material modification, but is under no obligation to do so. Company acknowledges that FAA is not liable to Company or any Third Party for any modification made to the Platform. “Third Party” means any entity or person who is not a party to this Agreement, but who may be affected by it.
    4. Support & Service Levels. Company may receive support by contacting support@FreeAppAnalytics.com. The Platform is designed to operate and otherwise comply and function in all material respects on an uptime basis of 99.99% over a rolling annual basis.
    5. Prohibited Activities. Company shall not: (i) download, duplicate, rent, loan, sell, distribute, or create derivative works based on the Platform or the Marks; (ii) use the Platform for any purpose not contemplated and intended by this Agreement; (iii) gain, or attempt to gain, access to the Platform, networks, or systems through which FAA provides the Platform by any means other than the interface or API provided to Company by FAA; (iv) license, sublicense, resell, transfer, or assign to a Third Party any right to use or access the Platform; (v) operate as a service bureau or otherwise use the Platform on behalf of, or for the benefit of, a Third Party; (vi) access, decompile, reverse engineer, or attempt to access, decompile, or reverse engineer the software or technology by which FAA provides the Platform; (vii) use the Platform to create or modify a competitive product or service; (viii) create internet “links” to the Site without prior express written permission from FAA; (ix) frame or mirror the Platform on any server or wireless or Internet-based device without prior express written permission from FAA; (x) modify, reroute, or attempt to modify or reroute, the Platform; (xi) use the Platform in any manner that could damage, disable, overburden, or impair the Platform, regardless of foreseeability; (xii) interfere with any other party’s use or enjoyment of the Platform; (xiii) use the Platform for an illegal purpose or activity; (xiv) host, upload, transmit, engage in behavior, or otherwise use the Platform in a manner that is harassing, infringing, libelous, invasive of another’s privacy, harmful, threatening, fraudulent, deceptive, obscene, otherwise unlawful or tortious, or that may give rise to civil liability, including, but not limited to sending, transmitting, or using the Platform in a manner associated with any unsolicited bulk messages or unsolicited commercial messages; (xv) instrument the Platform to capture, handle, or otherwise process Personally Identifiable Information; (xvi) remove, deface, or obscure any copyright, trademark, or other proprietary notices on, in, or associated with the Platform, which belong to FAA or any of its providers, suppliers, or licensors; (xvii) permit a Third Party to engage in any of the above prohibited activities; or (xviii) send FAA material containing malicious code, which may include without limitation, a virus, worm, time bomb, Trojan horse or other harmful code, file, script, agent, or program.
    6. Reservation of Rights. FAA reserves the right to refuse Company access to the Platform or terminate this Agreement if FAA reasonably determines Company engaged in any of the activities described in Section 1.5 (Prohibited Activities).
  2. Ownership
    1. Platform, Site, Marks. FAA is the sole and exclusive owner of the Platform and the Site. FAA owns or licenses the Marks. “Marks” means collectively, the trademarks, service marks, and logos on the Site or used in connection with the Platform. The Platform, Site, and Marks are protected by applicable intellectual property and other laws. FAA reserves all rights, title, and interest in the Platform, Site, and Marks, and its intellectual property rights not expressly granted under this Agreement.
    2. Company Materials. Company is the sole and exclusive owner of all Company Materials. “Company Materials” means, collectively, all documentation and materials furnished or made accessible by Company to FAA, whether in oral or written form, and all Company-owned or licensed trademarks, service marks, and logos. FAA explicitly disclaims any ownership in Company Materials. FAA shall not disclose, distribute, or otherwise disseminate Company Materials to any Third Party. FAA shall not use Company Materials for any purpose not expressly authorized hereunder. FAA shall, at the option of Company, promptly return or destroy all Company Materials in its possession. Company reserves all rights, title, and interest in all Company Materials and its intellectual property rights not expressly granted under this Agreement.
    3. Company Data. Company retains all right, title, and interest in and to all Company Data. “Company Data” means all electronic information and data processed by the Platform via software development kits or server-to-server on behalf of and relating to Company. FAA has no rights in or to any Company Data not expressly indicated under this Agreement. Company hereby grants FAA an unrestricted, irrevocable, perpetual license to: (i) collect, process, store, use, modify, license, offer, and sell Company Data, including but not limited to data segments; and (ii) enhance or augment Company Data with other data obtained by FAA from third parties.
    4. Third-Party Transfer. In the event Company instruments the Platform to transfer Company Data to a Third Party, all use of Company Data by the Third Party is governed by the contractual obligations between the Third Party and Company. Therefore, when Company instruments the Platform to transfer Company Data to a Third Party, the Third Party use of Company Data is not governed by this Agreement.
  3. Confidential Information
    1. Confidential Information. Confidential Information means any nonpublic information, oral or written, that should be reasonably understood as confidential given the nature of the information and the circumstances of disclosure, whether or not marked “proprietary” or “confidential.” Confidential Information includes, without limitation, the Platform.
    2. Non-Disclosure. The Parties shall only use or disclose Confidential Information on a need-to-know basis for the limited purposes of performing their obligations under this Agreement, using the Platform, or exercising their rights granted hereunder. If Company engages the services of a Third Party relating to such performance, use, or rights, then Company shall require the Third Party to be bound by a non-disclosure agreement of equal or greater force than that required of the Parties under this Agreement.
    3. Non-Confidential Information. For purposes of this Agreement, Confidential Information does not include: (i) Company Data or information derived therefrom; (ii) information that enters the public domain (other than as a result of a breach of this Agreement); (iii) information that was in the receiving Party’s possession prior to its receipt from the disclosing Party; (iv) information that is independently developed by or on behalf of the receiving Party without the use of or reference to the disclosing Party’s Confidential Information; or (v) information that is obtained by the receiving Party from a Third Party under no obligation of confidentiality to the disclosing Party.
    4. Ownership. All Confidential Information is, and will remain, the property of the disclosing Party, and no license or other rights to the disclosing Party’s Confidential Information is granted or implied hereunder.
    5. Compelled Disclosure. The Parties may disclose Confidential Information in response to a judicial or governmental requirement or order, provided that (i) the receiving Party has given the disclosing Party reasonable prior notice of such requirement or order to give the disclosing Party a reasonable opportunity to object or to seek a protective order or other appropriate remedy, (ii) the receiving Party reasonably cooperates with the disclosing Party so that it may object or seek a protective order or other appropriate remedy, and (iii) the receiving Party in any event discloses only that portion of the Confidential Information that it is legally required to disclose.
    6. Injunctive Relief. Company acknowledges that disclosure of any Confidential Information by it or its employees or subcontractors will give rise to irreparable injury to FAA or the owner of such information, and cannot be adequately compensated by damages. Accordingly, FAA will be entitled to equitable relief, including injunctive relief and specific performance against the breach or threatened breach of the undertakings in this Section 3.0, in addition to any other legal remedies which may be available.
  4. Privacy
    1. FAA Privacy Policy. This Agreement incorporates the FAA Privacy Policy, located online at www.FreeAppAnalytics.com/privacy/.
    2. Privacy Shield. As a certified participant in the EU-U.S. Privacy Shield, FAA adheres to the framework and principles of the EU-U.S. Privacy Shield with regard to its use of End User data belonging to citizens of a European Union member country. “End User” means a person who downloads, installs, utilizes, or otherwise interacts with Company mobile applications. See www.privacyshield.gov/list for details regarding certification. In accordance with Section 7.4 (Company Warranties), Company agrees to adhere to the framework and principles of the EU-U.S. Privacy Shield with regard to its use of End User data belonging to citizens of a European Union member country.
    3. Company Privacy. As Company shall at all times comply with its published privacy policies and disclosures. In particular, Company shall ensure all its web and mobile apps used to generate Company Data provide legally sufficient notice, including a prominent privacy policy and where required by law (e.g. European Union) any additional consents from its End Users regarding (a) Company’s collection, use, disclosure, and transfer of Company Data to third parties such as Kochava as described herein, and if applicable the collection of data through Kochava SDKs, (b) the use of Company Data by third parties such as Kochava for interest-based advertising, analytics, market research or other purposes. Further, Company’s privacy policy and disclosures must provide a description of how its End Users may employ device settings to opt out of geo-location data gathering (i.e., through app settings) and to limit ad tracking or otherwise opt out of interest-based advertising and related analytics.
  5. Term & Termination
    1. Term. This Agreement begins on the Effective Date and continues in effect on a month-to-month basis thereafter (“Term”), unless otherwise terminated as provided herein.
    2. Termination. Either Party may terminate this Agreement without cause during the Term with thirty days’ written notice to the non-terminating Party. If Company provides notice of termination pursuant to this Section 5.2, FAA shall continue to provide Company with access to and use of the Platform until termination is effective.
    3. Effect of Termination. Immediately upon termination, Company shall remove the SDK from all of its applications. Upon termination, FAA will return or destroy Company Materials in accordance with Section 2.2 (Company Materials).
    4. Survival. The definitions contained herein and Sections 2.0, 3.0, 4.0, 5.3, 5.4, 7.0, 8.0, 9.0, and 10.0 survive the expiration or termination of this Agreement.
  6. Information Security
    1. Information Security Management System. FAA adheres to ISO/IEC 27001 standards, which encompasses security practices throughout all levels of the FAA organization. Detailed information regarding ISO/IEC 27001 standards may be found by visiting the ISO.org website at http://www.iso.org/iso/home/store/catalogue_ics.htm.
    2. Data Security In-Transit/At-Rest. FAA employs industry standard encryption and authentication technologies, such as SSL/TLS and SSH, to protect data while it is in transit over public networks. FAA employs industry standard encryption technology to protect data while it is at rest on Third Party systems (e.g. Google Cloud services) and industry standard firewall technology to protect data while it is at rest on its own systems.
    3. Data Center Security. FAA processes and stores data on servers located in the United States. Google Cloud services provides all of public-facing FAA data ingestion points and public web services. All data processing and storage occurs within high security data centers that are, at a minimum, certified SSAE16 Type II SOC 2. Additional information regarding FAA data center security standards and statements may be found by visiting the following websites: www.tierpoint.com/resources/compliance and https://cloud.google.com/security.
    4. Risk Assessment. FAA conducts ongoing internal security audits of all aspects of its organization. FAA completes an audit of each aspect of the organization, including its physical security, network security, and security policies and procedures, at least once per quarter. FAA also contracts with an independent Third Party to audit its compliance and perform security tests on its physical and logical systems on an annual basis.
    5. Personally Identifiable Information. The Platform is not intended to collect or handle Personally Identifiable Information. “Personally Identifiable Information” means information, like name or email address, that can be used to contact or identify an individual. By default, the Platform is engineered to anonymize data during ingestion to render it non-personally identifying.
  7. Representations; Warranties; Disclaimer
    1. FAA Representations. FAA represents that: (i) FAA has the authority to enter into this Agreement, to carry out its obligations under this Agreement, and to grant the rights and licenses granted in this Agreement to Company; (ii) Company is not obligated to secure separate or independent licenses to any materials from any Third Party in connection with the services as provided by FAA; (iii) the Platform, and the use thereof, does not infringe, violate, or misappropriate any confidentiality obligation or intellectual property rights of any person or entity; and (iv) FAA complies with all applicable federal, state, and local laws.
    2. FAA Warranties. FAA warrants that: (i) FAA will, in the performance of this Agreement, comply with all applicable federal, state, and local laws; (ii) the Platform will operate and function on an uptime basis in all material respects at the level specified in Section 1.4 (Support & Service Levels); and (iii) the Platform will not contain spyware, viruses, or any other malicious code.
    3. Company Representations. Company represents that: (i) Company has the authority to enter into this Agreement and to carry out its obligations under this Agreement; (ii) Company complies with all applicable federal, state, and local laws and regulations, (iii) Company has received all necessary consents, releases, or permissions from its End Users (or has provided legally sufficient notice) to collect Company Data and transfer such data to Kochava, (iv) Company has a published privacy policy that is easily accessible to its End Users and the policy conforms with industry best practices; (v) Company adheres to its privacy policy; and (vi) no Company Data is derived from properties which promote illegal gambling, pirated or counterfeit goods or services, pornography, hate speech, or any other activities or goods that are illegal where offered or sold.
    4. Company Warranties. Company warrants that: (i) Company will limit its use of the Platform pursuant to Section 1.5 (Prohibited Activities); (ii) Company will comply with all applicable federal, state, and local laws and regulations throughout the course of its use of the Platform; (iii) if any Company products or services target children, then Company will not use the Platform to process any personally identifying information of children, as defined by, and pursuant to, the Children’s Online Privacy Protection Act of 1998; (iv) if Company purchases media on Facebook in conjunction with the Platform, then Company will be in compliance with the Facebook terms of use and privacy policy; (v) Company will adhere to the framework and principles of the EU-U.S. Privacy Shield throughout the course of its use of the Platform if Company uses the Platform to process any End User data belonging to a citizen of a European Union member country, (vi) Company will continue to receive all necessary consents, releases, or permissions from its End Users (or continue to provide legally sufficient notice) to collect Company Data before transferring such data to Kochava, (vii) Company will continue to publish its privacy policy to End Users in an easily accessible manner and the policy will continue to conform with industry best practices; and (viii) Company will continue to adhere to its privacy policy.
    5. Disclaimer of Warranties. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, EACH PARTY HERETO DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR USAGE OF TRADE.
  8. Indemnification
    1. Indemnification. Company shall indemnify, defend at its own cost and expense, and hold harmless FAA and its respective officers, directors, shareholders, employees, and agents from and against any third party action, suit, demand, judgment, settlement, loss, cost, expense (including reasonable attorneys’ fees and expenses), damage, liability, claim, or proceeding, whether fixed or contingent, and whether or not adjudicated (each an “Action”), on the condition that: (i) FAA gives Company sole control of the defense and settlement of the Action, (ii) FAA provides Company with all reasonable assistance, at the expense of Company, and (iii) the Action arises out of or relates to (a) a breach or default of any Company representations, warranties, obligations, or covenants set forth in this Agreement, (b) a violation by Company of any applicable governmental, administrative, or judicial law, rule, or regulation, or (c) infringement, misappropriation, or other violation of any intellectual property rights in connection with Company Data.
  9. Limitation Of Liability
    1. No Guarantee. FAA does not guarantee: (i) any particular outcome as a result of the use of the Platform; (ii) the Platform will meet all expectations of Company; or (iii) the Platform will be entirely error-free.
    2. Limitations. WITH THE EXCEPTION OF THE INDEMNIFICATION AND DEFENSE OBLIGATIONS UNDER Section 8.0 (Indemnification) AND LIABILITY AND DAMAGES ARISING OUT OF COMPANY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, NO PARTY HERETO SHALL BE LIABLE FOR ANY CONSEQUENTIAL, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, HOWEVER ARISING.
    3. Aggregate Liability Limitation. If the limitations and exclusions specified in Section 9.2 (Limitations) are unenforceable, then a Party’s aggregate liability to the other Party shall not exceed $10,000.
  10. General
    1. Governing Law. To the fullest extent permitted by law, this Agreement is governed by and construed in accordance with the laws of the State of California, USA, without regard to its conflicts of law principles or provisions.
    2. Dispute Resolution. Any dispute, controversy, or claim arising from, or in connection with, this Agreement shall be submitted to binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. Arbitration shall be conducted in Spokane, Washington. The arbitration shall be finally determined by one arbitrator and judgment on the award rendered may be entered in any court having jurisdiction thereof. Without limiting the foregoing, in the event of a breach of this Agreement by Company, FAA may seek injunctive relief or a temporary restraining order in any court of competent jurisdiction without first resorting to arbitration if FAA deems in good faith that such a remedy is necessary.
    3. Dispute Limitation. Any claim or cause of action arising from, or in connection with, this Agreement or the use of the Platform must be filed within one year after such claim or cause of action arose or it is forever barred.
    4. Relationship between the Parties. Company acknowledges and agrees that FAA, and its employees, agents, and contractors, are independent contractors, rather than agents or employees of Company. Nothing herein shall be deemed to create an employment, joint venture, agency, or partnership relationship between the Parties. The Parties are prohibited from acting toward any Third Party, individual entity, or the public in any manner that may indicate a relationship to the contrary.
    5. Assignment. Company is prohibited from assigning this Agreement, in whole or in part, without the prior written consent of FAA. Any attempt to assign this Agreement without prior written consent from FAA is void. A sale or transfer of a majority of Company assets, capital stock (if a corporation), partnership interests (if a partnership), or membership interests (if a limited liability company), or a merger or consolidation, in any case resulting in the transfer of voting control shall be deemed an assignment of this Agreement requiring the prior consent of FAA.
    6. Notices. Company shall deliver all required notices or communications under this Agreement to FAA at the physical or electronic address shown below. FAA shall deliver all required notices or communications under this Agreement to Company at the electronic address provided by Company at the time it registers its account on the Site. Notices and communications are deemed delivered to the receiving Party on the date sent by the sending Party. For purposes of this Agreement, an electronic communication has the same force and effect as a signed, physical writing.
    7. Notices to FAA:
      Free App Analytics
      201 Church Street
      Sandpoint, ID 83864
      Attention: Doug Lieuallen
      Email: dlieuallen@kochava.com

    8. Modification of Agreement. This Agreement shall not be modified or waived in the absence of a signed writing by the Parties which references this Agreement.
    9. Force Majeure. FAA shall not be liable under this Agreement by reason of any failure or delay in the performance of its obligations to Company if such failure or delay arises on account of events beyond the reasonable control of FAA. Such events include, but are not limited to, strikes, riots, war, acts of terrorism, acts of God, fire, explosion, flood, telecommunications, internet, or network failure, results of vandalism or computer hacking, national emergencies, and acts of government or governmental agencies or instrumentalities.
    10. Publicity. During the Term, and for the limited purpose of promoting the Platform, Company authorizes FAA to publish a case study regarding Company use of the Platform, use the Company name and logo, and use feedback regarding Company use of the Platform.
    11. Headings. The section headings in this Agreement do not define or limit the scope of their associated provisions.
    12. Entire Agreement; Counterparts. This Agreement constitutes the complete agreement between the Parties and supersedes all prior or contemporaneous written or oral agreements, conditions, or understandings between the Parties, including the Terms of Use found on FreeAppAnalytics.com. The terms and conditions of this Agreement supersede all conflicting terms or conditions included in any invoice, ordering document, insertion order, purchase order, or transaction document. This Agreement may be executed in counterparts, each of which shall be deemed an original, and both of which, when taken together, shall constitute one and the same instrument.
    13. Severability. If a court of competent jurisdiction, or an arbiter pursuant Section 10.2 (Dispute Resolution), holds or deems any provision of this Agreement to be invalid or unenforceable, then that provision shall be deemed to have been deleted from this Agreement, while the remaining provisions of this Agreement shall remain in full force and effect according to its terms.
    14. Waiver. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy. No waiver of any provision of this Agreement is effective unless in writing and signed by both Parties. Any waiver by a Party of any provision of this Agreement shall not be construed as a waiver of any other provision of this Agreement, nor shall such waiver operate or be construed as a waiver of any future event or circumstance.
    15. Additional Definitions. For additional definitions relating to the Platform, refer to the glossary located at https://support.kochava.com/reference-information/glossary.

This Agreement was last updated on March 3, 2017.

Terms of Service Agreement*