“You” or “Your” (whether capitalized or lower-case) means any entity identified in an enrollment form submitted by the same or affiliated persons, and/or any agency, network or other third party that has access to Your account and/or Your Online Services Data (as defined below), which will also be bound by the terms and conditions of this Agreement. The Online 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 that (a), if you are an individual, you are at least 18 years old, and (b) if you are a company, that you are appropriately licensed and legally permitted to conduct business.
This Agreement, including any terms or policies referred to herein, and any relevant addenda (collectively “Agreement”) constitutes the entire and only agreement between You and Chartboost, Inc. (“Chartboost”), and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the content, products or services, which may include any real-time bidding mechanisms (“Real-Time Bidder” or “RTB”), provided by Chartboost (the “Online Services”), and the subject matter of this Agreement.
Chartboost may modify this Agreement at any time by posting a revised version of this Agreement. Such revised Agreement will become effective on the later of (a) seven (7) days after being posted or (b) the date set forth in the revised Agreement. PARTICIPATION IN OR ANY OTHER USE OR ACCESS OF THE ONLINE SERVICES ON OR AFTER THE EFFECTIVE DATE OF SUCH REVISED AGREEMENT INDICATES THAT YOU ACCEPT SUCH REVISED AGREEMENT.
1. Description of Online Services.
If you are a publisher, during the Online Services Term (as defined below) Chartboost will serve to You advertisements provided by third party advertisers (“Online Services Ad(s)”), for display on the app(s) that use and/or are accessible via the Online Services (“Online Services App(s)”), based upon the criteria selected by You and/or Your advertisers via the protocol and/or user interface provided by Chartboost for accessing the Online Services. This protocol and/or user interface may be updated by Chartboost from time to time without notice to you (“Online Services Interface”).
If you are an advertiser, during the Online Services Term you will provide Online Services Ads for display on the Online Services Apps.
2. Implementation of Online Services. You will implement the Online Services in a manner that complies with the technical and implementation requirements provided on Chartboost’s website currently located at www.chartboost.com (the “Site”) or in writing by Chartboost to You from time to time, including those instructions contained in the documentation regarding the Online Services Interface. Without limiting the foregoing, You acknowledge and agree to the following:
a) Online Services Obligations. In order for the Online Services to work correctly, You must provide the following information with every ad request: (i) a unique device identifier or other device ID, (ii) Ad unit ID, mapped to the application that is in use by the end user, (iii) device type, (iv) language, (v) OS version, (vi) SDK version, (vii) device model, (viii) display type, (ix) bundle ID, (x) user agent, and (xi) country. In addition, for any video ad request You must provide statistics about videos and video playback required by Chartboost such as: start/bootup information, cancel, amount played/session length information, memory on device used for our video cache, videos cached on a device and complete view event. For certain Online Services, such as RTB, you will also be required to provide all attributed and non-attributed end user in-app purchase data and certain other post-install user data (collectively, “Post-Install Data”), which may include data obtained from third party mobile measurement partners. Post-Install Data may include identifiers for advertising, timestamps, purchase amounts, and bundle and product IDs.
In addition, You or Your selected third-party attribution platform, which must be acceptable to Chartboost, must notify Chartboost when an application is opened by the user. Chartboost may collect certain data (“Attribution Data”) from You or from such third-party attribution platform. Attribution Data includes but is not limited to all sessions for the applicable app, as well as attributed and non-attributed installs to Chartboost. You will be solely responsible for all, without limitation, Online Services Ad content, Online Services Ad information, Attribution Data, Post-Install Data, Online Services Ad URLs, editorial, text, graphic, audiovisual, and other content and any other information You provide to the Online Services, whether generated by or for You by a third party (“Online Services Data”). You will protect any Online Services accounts, usernames or passwords and take full responsibility for Your own, and third party, use of any Online Services accounts, usernames or passwords. You will obtain Chartboost’s prior written consent (to include email) for any third party use of the Online Services except for (i) a third party’s use solely to provide analytics information for Your Apps and (ii) a bona fide advertising agency’s use. If You permit any third party to access your Online Services account, you agree that You are liable for any such third party usage. If you permit a third party to provide to Chartboost post-install data on Your behalf using “Post-Install Tools”, which include Post-Install Analytics, Retargeting and Newsfeed, you must generate a unique authentication token that must be used in connection with such third party’s provision to Chartboost of such data, which may include Post-Install Data. You will not permit access to the third party unless and until such third party agrees to comply with Chartboost’s terms and conditions. Any data collected or accessed through the Online Services must be directly accessible by Chartboost. Your use of an intermediary who has sole direct access to user data arising from the Online Services is prohibited.
c) Prohibited Actions. You will not, and will not allow any third party to: (a) directly or indirectly access, launch and/or activate the Online Services through or from, or otherwise incorporate the Online Services in, any software application, website or other means other than the Online Services App(s), and then only to the extent expressly permitted herein; (b) transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co- branding, timesharing, service bureau or other unauthorized purposes the Online Services or access thereto (including, but not limited to ads, including without limitation Online Services Ads, or any part, copy or derivative thereof); (c) directly or indirectly generate queries, or impressions of or clicks on ads, including without limitation Online Services Ads, through any automated, deceptive, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro Online Services, and Internet agents); (d) encourage or require end users or any other persons, either with or without their knowledge, to click on ads, including without limitation Online Services Ads, through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent; (e) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Online Services, Chartboostʼs then current protocol for accessing and implementing the Online Services (the “Chartboost Protocol”), or any other Chartboost technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation; (f) remove, deface, obscure, or alter Chartboostʼs copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of the Online Services, the Chartboost Protocol, or any other Chartboost technology, software, materials and documentation; (g) create or attempt to create a substitute or similar service or product through use of or access to any of the Online Services or proprietary information related thereto; or (h) utilize any feature or functionality of the Online Services, or include anything in Online Services Data or Online Services Ads, that could be so utilized, to personally identify and/or personally track individual end users or any other persons.
d) Restrictions. You must use the Online Services only for serving advertisements and promotions to Online Services Apps. You may not use the Online Services to serve other content. You may not serve advertisements that interfere with the correct operation of the userʼs mobile device. You may not use the Online Services with Online Services Apps that: (i) promote or depict illegal activity or violence, (ii) advocate against a particular group , (iii) infringe a third party’s rights, (iv) introduce viruses, spyware, and malware, (v) contain sexually explicit content, (vi) depict illicit drugs and drug paraphernalia, (vii) promote weapons or ammunition, (viii) promote hard alcohol, (ix) could harm minors in any way, or (x) contain any content that is illegal, promotes illegal activity, misleading, inaccurate, or infringes on the legal rights of others.
e) No Endorsement. Chartboost does not represent or endorse any ads, links, content, advice, opinion, offer, proposal, statement, data or other information from any third party products/services (“Disclaimed Content”) that is displayed or distributed through Online Services. Chartboost hereby disclaims any liability or responsibility for any Disclaimed Content. Chartboost reserves the right, but will have no responsibility, to edit, modify, refuse to post or remove any Disclaimed Content, in whole or in part, that in Chartboost, in its sole and absolute discretion, deems is objectionable, erroneous, illegal, fraudulent or otherwise in violation of this Agreement.
3. Online Services Term. This Agreement will be effective as of the date Chartboost activates Your Online Services account and will continue until terminated as provided in this Agreement (the “Online Services Term”). Unless agreed otherwise in writing, You may terminate this Agreement, with or without cause, at any time by sending written notice of Your desire to cancel Your participation in the Online Services to email@example.com. This Agreement will be deemed following Chartboostʼs receipt of Your notice. If You violate this Agreement, Chartboost may in its sole discretion, with or without notice, terminate this Agreement, or suspend or terminate the participation of Your Online Services App in all or part of the Online Services. In addition, Chartboost may in its discretion terminate this Agreement, or suspend or terminate the participation of Your Online Services App in all or part of the Online Services, for any other reason or no reason, upon thirty (30) days’ prior notice.
4. Advertiser and Agency Obligations. You will be solely responsible for all matters related to You and to third party advertisers who provide advertisements to You as an agent in connection with the Online Services (“Third Party Advertisers”), including without limitation the solicitation and trafficking of Online Services Ads, billing and payment of Third Party Advertisers, providing all technical support services to Third Party Advertisers, and handling all other inquiries and disputes of any type or nature related to You or to Third Party Advertisers. For clarity, Chartboost shall have no obligations or liability of any kind with respect to Third Party Advertisers.
5. Payments and Fees. Some of the services in the Online Services require payment of fees.
If You are an advertiser under a “pre-payment account” (meaning an account in which You pay for the Services in advance), You will pre-pay all applicable fees together with any applicable taxes, as described on the Site, in connection with the Online Services.
If You are an advertiser under a “post-payment account” (meaning an account in which You pay for the Services after invoicing by Chartboost), Chartboost will invoice You based on the numbers in Chartboost’s online reporting system, which numbers will be deemed final and payment will be due from You within the payment terms established on the invoice.
If You are an advertiser and want to run a Cost Per Install (“CPI”) campaign you are required to have properly integrated either the Chartboost SDK or a valid server-to-server with an attribution provider. When using the SDK, Chartboost may keep the install loop open for a period of 21 days or such other period set forth in applicable rules or guidelines. During this time, installs will still be reported for campaigns that might be off (not displaying any new impressions) but the advertiser will still be accountable for the install and the publisher will be paid for installs coming from clicks that they delivered in the past.
If Your payment method fails or Your account is past due, Chartboost may take steps to collect past due amounts using any available collection mechanisms. User agrees to pay all expenses associated with such collection, including reasonable attorneys’ fees.
Interest will accrue on any past due amounts at the rate of the lesser of 1% per month or the lawful maximum.
If You are a publisher, Chartboost will pay You the monthly earnings reflected in the Online Service dashboard, subject to the minimum applicable threshold for payment. Any such payments will be related to valid impressions shown on the applicable Online Services Apps and the pricing associated with such impressions.
Net Revenue means revenue actually received by Chartboost from the sale, use or other disposition of Online Services Ads displayed on the applicable Online Services Apps less sales, use, value added and excise taxes, less any agency commissions, buyer fees, carrier and/or partner fees, and less any allowances actually made or taken for returns, cash discounts or promotional allowances but excluding other revenue indirectly earned, if applicable, for consulting, planning and targeting, copywriting, site building, account management or technical modifications or technical innovations which may be charged by Chartboost to third parties from time to time.
In the event that Your earnings for any given month are less than the applicable threshold communicated to User via User’s online account, Chartboost reserves the right to roll such payment over month to month until the applicable threshold is met.
All payments will be calculated solely based on Chartboost’s accounting. Payments to you may be withheld to reflect or adjusted to exclude any amounts refunded or credited to advertisers and any amounts arising from invalid activity, as determined by Chartboost in its sole discretion. Unless otherwise agreed by Chartboost in writing, invalid activity is as determined solely by Chartboost in all cases and includes, but is not limited to, the Prohibited Actions stated in Section 2(c) of this Agreement.
Chartboost reserves the right to change its fees and to institute new charges at any time, upon prior notice. To ensure proper payment, You are solely responsible for providing and maintaining accurate contact and payment information associated with Your account. Chartboost’s fees do not include Taxes and You agree to pay all applicable taxes imposed by any government entity in connection with the use of the Online Services.
6. License to Online Services Interface. Chartboost grants to You a limited, revocable, non-transferable, non-exclusive and non-sublicensable license during the Online Services Term to use the Online Services Interface solely for the purpose of transmitting Online Services requests and other required information and receiving Online Services results sets solely to the extent expressly permitted hereunder. Except to the limited extent expressly provided in this Agreement, Chartboost does not grant, and You will not acquire, any right, title or interest (including, without limitation, any implied license) in or to any Chartboost intellectual property rights; all rights not expressly granted herein are reserved to Chartboost.
8. Confidentiality; Publicity. Each party agrees not to disclose the other party’s Confidential Information without the other partyʼs prior written consent. “Confidential Information” of a party means any information identified by a party as “Confidential” or an equivalent designation and any information disclosed under circumstances that a reasonable person should know such information is confidential/proprietary. Chartboost’s Confidential Information includes without limitation: (a) all software, technology, programming, specifications, materials, guidelines and documentation relating to the Online Services, including the existence and content of this Agreement and any information provided pursuant to the Agreement; (b) any statistics relating to the performance of the Online Services. Confidential Information does not include information that has become publicly known through no breach by the receiving party, or information that has been (i) independently developed without access to the disclosing party’s Confidential Information as evidenced in writing; or (ii) rightfully received without confidentiality obligations by the receiving party from a third party. A receiving party’s obligations in this section shall not apply to Confidential Information to the extent it is required to be disclosed by law or by a governmental authority. Chartboost may use Your name and logo in any news release, public announcement, advertisement, or other form of publicity. You shall not use Chartboost’s name or logo for any purpose without the prior written consent of Chartboost in each case. In addition, Chartboost may use any content used with the Online Services in any form of publicity.
9. Disclaimer. Chartboost does not represent or warrant that the Online Services are reliable, accurate, complete, or otherwise free from defects. Accordingly, the Online Services are made available for use “as is”, and any use thereof will be undertaken solely at Your own risk. Chartboost reserves the right, in its sole discretion, to include or cease providing the Online Services at any time (subject to notice as may be required herein), and Chartboost does not give or enter into any conditions, warranties or other terms with regard to the Online Services. In particular and without limiting the foregoing, no condition, warranty or other term is given or entered into to the effect that the Online Services will be of satisfactory quality, noninfringement or that the Online Services will be fit for any particular purpose.
10. Limitation of Liability. EXCEPT WITH RESPECT TO (A) EITHER PARTY’S BREACH OF SECTION 8 (CONFIDENTIALITY) OR (B) YOUR OBLIGATIONS UNDER SECTION 12 (INDEMNIFICATION), NEITHER PARTY WILL BE LIABLE TO THE OTHER OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE ONLINE SERVICES), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY. IN ANY EVENT AND NOTWITHSTANDING THE FOREGOING EXCLUSIONS, CHARTBOOST’S TOTAL CUMULATIVE LIABILITY TO YOU FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE NET AMOUNT PAID BY YOU TO CHARTBOOST IN THE SIX MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
11. Representations and Warranties.
If you are a publisher: You represent and warrant that: (a) you are the owner of each Online Services App designated in connection with the use of Online Services or that you are legally authorized to act on behalf of such owner for the purposes of this Agreement; (b) you have all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder; (iii) any data supplied or disclosed to Chartboost under or in connection with the Services shall be collected, used, disclosed, and otherwise processed in accordance with applicable data protection laws and regulations and without breach of any rights of any person or entity or of any agreement with a third party; (d) any data made available to Chartboost includes all necessary rights, consents, and permissions for Chartboost to collect, use, disclose, and otherwise process such data as set forth in this Agreement; and (e) each of the Online Services Apps and any material displayed therein comply with all applicable laws and regulations and all requirements of this Agreement.
If you are an advertiser: You represent and warrant that: (a) you are the owner of each Online Services Ad designated in connection with the use of Online Services or that you are legally authorized to act on behalf of such owner for the purposes of this Agreement; (b) you have all necessary right, power and authority to enter into this Agreement and to perform the acts required of User hereunder; (c) any data supplied or disclosed to Chartboost under or in connection with the Services shall be collected, used, disclosed, and otherwise processed in accordance with applicable data protection laws and regulations and without breach of any rights of any person or entity or of any agreement with a third party; (d) any data made available to Chartboost includes all necessary rights, consents, and permissions for Chartboost to collect, use, disclose, and otherwise process such data as set forth in this Agreement; and (e) each of the Online Services Ads and any material displayed therein comply with all applicable laws and regulations and all requirements of this Agreement.
Chartboost represents and warrants that: (i) it has the power and authority to grant the rights and perform the obligations to which it commits herein; and (ii) its Online Services Interface will not knowingly violate the intellectual property rights of any third party.
12. Indemnification. You agree to defend, hold harmless and indemnify Chartboost and its affiliated companies, and each of their officers, directors, employees, agents, licensees (collectively, the “Chartboost Indemnitees”) from and against any and all liabilities, losses, damages, costs and expenses (including reasonable legal fees and expenses) relating to or arising out of or from (a) your use or inability to use the Online Services; (b) your violation of any term of this Agreement; (c) your violation of any applicable laws, rules or regulations; (d) your breach of any third party agreement; or (e) your violation of any right of any third party. You further agree, on behalf of yourself and your permitted successors, and your and their legal representatives, to the extent permitted by applicable law, not to make any claim, file any complaint, or bring any lawsuit or other action against any Chartboost Indemnitee arising out of or related to any breach or alleged breach by Chartboost (or any of its affiliated companies) of any agreement between Chartboost (or such affiliated company) and a third party, regardless of whether or not you are a third party beneficiary to such agreement.
13. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions thereof. Any claims, legal proceeding or litigation arising in connection with the Agreement will be brought solely in San Francisco County, California, and You consent to the jurisdiction of such courts. Neither partyʼs waiver of any default is a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the partiesʼ intention, and remaining provisions of the Agreement will remain in full effect. You may not assign any of Your rights hereunder and any such attempt is void (except to Your successor in the event of Your merger, acquisition or sale of all or substantially all or Your assets). Chartboost and You are not legal partners or agents, but are independent contractors. You agree that there shall be no third party beneficiaries to this Agreement. Notwithstanding termination of this Agreement, 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 shall survive and continue in effect.
14. Language. This Agreement is in the English language. If there is any discrepancy between the provisions of the English and another other language version of this Agreement, the provisions of the English version shall prevail and be used in interpreting this Agreement in all cases, and the provisions of any other language version shall not affect the interpretation of this Agreement.