TERMS AND CONDITIONS
1.1 In consideration of and subject to payment of the fees and marketing obligations listed herein and on the applicable Order Form (the “Fees”) and subject to full compliance with all the terms and conditions of this Agreement, Upsight will use reasonable commercial efforts to provide Customer the Products selected in the Order Form, including the Upsight proprietary software, SDKs, interfaces, and APIs (“Software”) provided to access the analytics and ad mediation platform (“Upsight Platform”) offered by Upsight (collectively, the “Services”). Upsight Mediation is a comprehensive analytics product that includes analytics and ad mediation, which aggregates ad network partners (“Advertisers”) and selects ads to be delivered via Customer’s mobile application(s) (“Advertising”) based on its framework designed to optimize advertisement delivery and advertising revenue.
1.2 As part of the registration process, Customer will identify an administrative user name and password for Customer’s Upsight account (the “Account”). Customer may use the administrative user name and password to create standard users (each with a user password) up to the maximum number permitted in the Order Form, if any. Upsight reserves the right to refuse registration of, or cancel passwords it deems inappropriate. By entering into this Agreement and using the Services, Customer accepts and agrees to be bound by the Upsight privacy policies listed on the Upsight website.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 This is a contract for Services and the applicable hosted software will be installed, accessed and maintained only by or for Upsight and no license is granted thereto. Subject to Customer’s compliance with the terms of Sections 2.2 through 2.4, Section 3 and Section 4, Upsight grants to Customer, for the term of this Agreement, a right to receive the Services and a right to reproduce and distribute internally within Customer’s business, and for Customer’s internal use only (and only in accordance with any applicable documentation), the documentation and data provided to Customer by Upsight (the “Upsight Data”). Customer will not (and will not allow any third party to), directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services (or any underlying software, documentation or data related to the Services); modify, translate, or create derivative works based on the Services or any underlying software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any underlying software; use the Services or any underlying software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.2 Notwithstanding Section 2.1, for the purpose of accessing the Services, Customer may download from Upsight one or more SDKs which it may incorporate into its mobile applications. Upsight grants Customer a nonexclusive, non-assignable, royalty free, limited right during the term of this Agreement to download and use the SDK (or SDKs, as applicable) solely for this purpose. Customer agrees to integrate the SDK (or SDKs, as applicable) into each applicable Customer mobile application in accordance with terms and conditions of this Agreement and any written integration and other guidelines provided by Upsight. Upsight reserves the right to make changes and updates to the functionality and/or documentation of the SDKs and the Services from time to time without notice.
2.3 Customer represents, covenants, and warrants that Customer will access and use the Services only in compliance with Upsight’s standard access and security policies then in effect and made available to Customer. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service. Customer is responsible for its compliance with any and all applicable third party terms of service, data usage and privacy policies for any platforms, networks and/or websites that they run their games and/or applications on, including but not limited to, Facebook, Android, Blackberry or iOS/App Store, which includes, but is not limited to, the prohibition of providing or sharing with advertisers any datasets that contain Facebook information (e.g., FBID, campaign ID, campaign name, ad group ID, ad group name, etc.) at the individual user, install or device level.
2.4 Certain items of independent, third-party code may be provided with the SDK that are subject to the GNU General Public License or other open source licenses. Such open source software is licensed under the terms of the license accompanying such software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for such software. By accepting this Agreement, you are also accepting such terms and conditions. By downloading or using the SDK you agree to be bound by the terms of this Agreement and such third party terms and conditions.
2.5 Upon written approval by Customer, Customer shall display an approved “Powered by Upsight” tag, along with Upsight’s logo on Customer’s “About” or attribution page for each of its games or applications which use the Services. The size and placement of the tag and logo on the Customer’s website shall be consistent with normal industry standards. Upsight shall provide Customer with approved tags and logos in appropriate digital formats, and grants Customer a revocable, non-exclusive, royalty-free, non-transferrable license to use and display such tags, logos and trademarks in a manner consistent with this Section 2.5 during the Term. Except as permitted by law, neither party shall acquire hereunder any right to use the name or logo of the other party or any part thereof. Any such use shall require the express written consent of the owner party. Notwithstanding, Upsight shall be permitted to list Customer’s name and logo in its list of customers on its website and in its marketing materials.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, nothing (except the Services and underlying software, algorithms and information embodied therein) will be considered “Proprietary Information” of the Disclosing Party unless either it is or was disclosed in tangible or written form and is conspicuously marked “Confidential”, “Proprietary” (or the like) at the time of disclosure or it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within 30 days of disclosure.
3.2 The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three years following the disclosure thereof (except the Services and underlying software, algorithms and information embodied therein which shall remain confidential indefinitely) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required by law. In the performance of the Services, Upsight is expressly authorized to collect general user data and report on the aggregate response rate and other aggregate measures of the Services’ performance, provided that the user data is anonymized and no personally identifying information of the Customer or its users is revealed.
3.3 Any suggestions, comments or other feedback provided by a party to the other in connection with this Agreement, including with respect to the Services (collectively, “Feedback”) is and will be treated as the recipient’s Confidential Information. Further, the recipient will be free to use, disclose, reproduce, license, distribute and otherwise exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights (as defined below) or otherwise.
4. OWNERSHIP, DATA & DATA SECURITY
4.1 Upsight owns all right, title and interest in and to the Upsight Data, SDKs and the Services, and any and all related Intellectual Property Rights. “Intellectual Property Rights” means any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction in the world, including any applications and registrations for any of the foregoing. Each party reserves all rights not expressly granted in this Agreement, and no licenses are granted by a party to the other party under this Agreement, whether by implication, estoppel or otherwise, except as set forth in this Agreement.
4.2 The Upsight Platform utilizes Software included in each Customer mobile application that collects and transmits information about each Customer end user and their mobile device for analytics, and in the case of Upsight Mediation advertising optimization purposes (“User Data”) (together with all other information transmitted to the Services by Customer, collectively the “Customer Data”). As between the parties, Customer owns all right, title, and interest in and to the Customer Data, including all Intellectual Property Rights therein. As a condition of Customer’s use and access to the Services, Customer hereby grants Upsight a royalty-free, fully-paid up, perpetual, irrevocable, transferable and sublicenseable right, for any purpose, to collect, retain, use, and disclose the Customer Data solely in an aggregate and anonymous manner that does not identify Customer, Customer end users, or any Customer mobile application.
4.4 Upsight will take reasonable technical and organizational measures designed to keep the Customer Data secure and to protect it against accidental loss or unlawful destruction, alteration, disclosure or access.
4.5 Upsight reserves the right to remove or disable access to any Customer Data that violate any criminal or civil law, including data that violate privacy rights or constitute an infringement of intellectual property or other proprietary rights. Upsight shall have no liability to Customer in the event that Upsight takes such action.
5. PAYMENT OF FEES
5.1 Customer will pay Upsight the Fees for the Services as listed on the applicable Order Form. Upsight reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the then-current term, upon 30 days’ prior notice to Customer (which may be sent by email).
5.2 If Customer believes that Upsight has billed Customer incorrectly, Customer must contact Upsight no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Upsight’s customer support department. Upsight must respond to Customer within three business days after receiving such inquires.
5.3 Upsight may choose to bill through an invoice, in which case full payment for invoices issued in any given month must be received by Upsight 30 days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Upsight’s net income.
5.4 If Customer has purchased Upsight Mediation, Upsight will pay to Customer a portion of the revenue actually received from the Advertising in accordance with Upsight’s then current publisher partner revenue share policy (“Revenue Share Policy”). Payments will be made to Customer within 15 days after the applicable advertising partner has paid Upsight. (Most advertising partners remit payments within 30 days following the end of the calendar month in which advertising revenues are generated, but some advertising partners make payments within 60 days). The amount of funds available for payment to Customer will be stated on the monthly statement provided to Upsight via email or the Upsight dashboard. Upsight reserves the right to make payments to Customer only when Customer’s accumulated unpaid earnings reach $250.00 or more, and Upsight may deduct any wire transfer fee, if a wire transfer is requested.
5.5 Revenue Share Policy. There is no fixed revenue share for Upsight Mediation. Upsight negotiates separate deals with each advertiser within Upsight Mediation, and the revenue share to Customer will differ from advertiser to advertiser and, as such, the resulting net revenue share will vary from day to day depending on the percentage of advertisements served by each advertiser.
6. TERM; TERMINATION
6.1 The term of this Agreement begins on Service Start Date and will remain in effect for the Service Term (the “Initial Term”). Thereafter, the Initial Term will automatically be renewed for successive periods as described in and in accordance with the terms set forth on the Order Form (each, a “Renewal Term”). The Initial Term and any Renewal Term are collectively referred to as the “Term.”
6.2 Either party may terminate this Agreement on written notice, effective immediately upon a breach of any material term of this Agreement by the other party, if the non-breaching party has given written notice of the breach and the other party failed to cure the breach within 10 days of such written notice of breach being delivered or deemed delivered. If this Agreement is terminated as a result of a material breach by Customer, Customer will pay in full all remaining Fees payable through the remainder of the Term. Termination (which includes expiration or non-renewal) of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under any order form.
6.3 The parties’ rights and obligations under Sections 2 (“Restrictions and Responsibilities”), 3 (“Confidentiality”), 4 (“Ownership, Data and Data Security”), 5 (“Payment of Fees”), 7 (“Indemnification”), 8 (“Warranty and Disclaimer”), 9 (“Limitation of Liability”), and 11 (“Miscellaneous”) shall survive termination.
7.1 Upsight agrees, at its own expense, to indemnify, defend Customer and hold Customer harmless against any suit, claim, or proceeding brought against Customer alleging that the use of Services in accordance with this Agreement infringes any copyright, trademark or U.S. patent. The foregoing obligations do not apply with respect to the Services or portions or components thereof (w) used other than in accordance with this Agreement, (x) not supplied by Upsight, (y) made in whole or in part in accordance to Customer specifications, (z) combined with other products, processes or materials where the alleged infringement would not have occurred without such combination. This section states Upsight’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of intellectual property of a third party.
7.2 Customer hereby agrees, at its own expense, to indemnify, defend and hold harmless Upsight against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) to the extent (i) based on or arising from any claim that the Customer Data infringes or constitutes a wrongful use of any third party’s Intellectual Property Rights; (ii) caused by, relating to or arising out of Customer’s use of the Services in violation of this Agreement, the applicable documentation, or applicable law, rule, or regulation; or (iii) use of the Services in violation of any third party right of publicity or privacy.
7.3 The party seeking indemnification pursuant to this Section (the “Indemnified Party”) shall provide the party obligated to provide such indemnification (the “Indemnifying Party”) with: (i) prompt written notification of any such claim; (ii) sole control and authority over the defense or settlement thereof; and (iii) all available information and reasonable assistance necessary to settle and/or defend any such claim, at the Indemnifying Party’s expense, provided that if any settlement requires any action or admission by the Indemnified Party, then the settlement will require the Indemnified Party’s prior written consent. Failure by the Indemnified Party to provide prompt notice of a claim or to provide such control, authority, information or assistance shall not relieve the Indemnifying Party of its obligations under this Section, except to the extent that the Indemnifying Party is materially prejudiced by such failure. The Indemnified Party may have its own counsel present at and participating in all proceedings or negotiations relating to a claim, at the Indemnified Party’s own expense.
UPSIGHT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7, UPSIGHT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY
9.1 EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR FOR EITHER PARTY’S BREACHES OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 3 (EXCLUDING DATA LOSS OR DAMAGE), NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR LOST SAVINGS, OR FOR LOST PROFITS, EVEN IF SUCH PARTY IS INFORMED OF THEIR POSSIBILITY (SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY).
9.2 EXCEPT FOR PAYMENTS MADE PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS OR FOR LIABILITY ARISING FROM EITHER PARTY’S BREACHES OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 3 (EXCLUDING DATA LOSS OR DAMAGE), THE TOTAL LIABILITY OF EACH PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (A) THE FEES ACTUALLY PAID BY CUSTOMER TO UPSIGHT IN THE TWELVE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED AND (B) THE REVENUE SHARE PAYMENTS, IF ANY, RETAINED BY UPSIGHT HEREUNDER IN THE TWELVE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL UPSIGHT’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS.
If any provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any party. Upon any determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement to effect the original intent of the parties as closely as possible and in an acceptable manner so that the transactions contemplated in this Agreement are fulfilled. This Agreement is not assignable, transferable or sublicensable by Customer except with Upsight’s prior written consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind or attempt to bind Upsight in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth in the applicable Order, and will be effective upon receipt or three business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Northern District of California, or in a state court in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. This Agreement may be executed in one or more counterparts (including via PDF or other electronic format), each of which shall be deemed an original but all of which together shall constitute but one agreement.
General Service Level Support Terms
- Up-Time and Reliability. Upsight will use commercially reasonable best efforts with the intent that Services will be available and operational to Customer for 99% of all Scheduled Availability Time. “Scheduled Availability Time” shall be defined as 24 hours a day, seven days a week, excluding the following event, not to happen more than once each per calendar month: (i) scheduled maintenance downtime, not to exceed 6 hours; (ii) maintenance downtime for specific critical Service issues, not to exceed 6 hours; and (iii) any downtime due to defects caused by Customer or caused by other forces beyond the control of Upsight (such as internet outages or outages with respect to Customer’s network or internet access). Upsight shall provide advance notice in writing or by email of any scheduled service disruption. In the event of any unexcused downtime, Customer shall be entitled to a prorated Service Credit for the downtime exceeding the Scheduled Availability Time service level, which Upsight will credit to the Customer’s next quarterly invoice or which shall be paid by Upsight to Customer (if there is no upcoming quarterly invoice). Upsight shall deliver to Customer monthly reports detailing the actual availability of the Services for the previous calendar month; such reports shall be provided to Customer with Upsight next quarterly invoice and any and all unavailability shall be reflected in the invoice by the corresponding prorated service credit (pro rata temporis).
To receive a Service Credit, Customer must submit a claim by emailing Upsight at email@example.com. To be eligible, the credit request must be received by Upsight by the end of the second contract month after which the incident occurred and must include:
- the words “SLA Credit Request” in the subject line;
- the dates and times of each unavailability incident that Customer is claiming; and
- Customer’s request logs that document the errors and corroborate Customer’s claimed outage (any confidential or sensitive information in these logs should be removed or replaced with asterisks).
- Maintenance. Upsight will make available to Customer all generally available, as part of the Services, enhancements, updates and bug fixes to the Services.
- Customer Responsibility. In addition to other responsibilities contained herein, Customer will be responsible for ongoing maintenance, management and accuracy of Customer’s registration and account information.
- Support. Upsight is available to receive product support inquiries via email or the Upsight website 24 hours per day. Upsight Standard Support Hours are 06:30 to 15:30 Pacific Time Monday through Friday for technical information, technical advice and technical consultation regarding Customer’s use of the Services.
- Customer Support List. Customer shall provide to Upsight, and keep current, a list of designated contacts and contact information (the “Support List”) for Upsight to contact for support services. Such Support List shall include (i) the first person to contact for the answer or assistance desired, and (ii) the persons in successively more responsible or qualified positions to provide the answer or assistance desired.
- Classification of Problems. Upsight shall classify each problem encountered by Customer according to the following definitions and will use reasonable commercial efforts to address the problem in accordance with such classification in the table below.