You are responsible for reviewing the documents that make up the Agreement before clicking “I accept” or accessing any of our Services. By clicking to accept the Terms of Service, you agree to be bound by the Agreement; if you are an individual acting on behalf of a company or other entity, you represent that you have the authority to bind that entity and accept this Agreement on its behalf. If you, as an individual, do not have that authority, or if either you or the entity you represent do not accept the Agreement, then you should not click to accept and Tapjoy does not authorize you or the entity to access or use our Services. (References to “you” or “Publisher” mean the person or entity accepting the Terms of Service; references to “we” or Tapjoy” mean Tapjoy, Inc.)
1.1 Monetization Services. “Monetization Services” means the Tapjoy Services that enable you to monetize your application by displaying advertisements provided through Tapjoy to users of your application. Monetization Services include (a) general advertising, in which advertisements are sourced directly by Tapjoy, and (b) “Exchange Services,” which means a type of advertising in which advertisements are sourced via Tapjoy’s programmatically integrated exchange partners.
1.2 Analytics Services. “Analytics Service” means the Tapjoy Service that enable you to collect, analyze, and use information about how your users interact with your application(s).
1.3 Ancillary Services. “Ancillary Service” means a Publisher Service other than analytics or monetization, such as cross-promotion and virtual currency management.
1.4 Exchange Services. “Exchange Services” means participation in our optional third-party exchange services; additional terms may apply.
2.1 Account Security. Once enrolled, you may create a password-protected account in order to use our Services. Publisher accounts are personal to each Publisher, and may not be shared with or serviced by third parties. You are responsible for protecting the security of your publisher account and for any access to or use of it, whether or not specifically authorized by you. You agree to use industry-standard security practices to protect your publisher account credentials, and to notify us immediately of any unauthorized access or use or other security breach; we disclaim all liability, whether to you or any third party, that arises based on your breach of this Section 2.1.
2.2 Requirements and Restrictions. All publishers using Services must comply with the following requirements and restrictions, as applicable to the Services they use. Material violation of these obligations may lead to consequences such as account suspension or termination and delay or forfeiture of associated payments, as well as federal, state, or local legal consequences.
3.1 General. All payments will be made in U.S. dollars unless we have agreed in writing to use an alternate currency. Your receipt of timely payment depends on your provision to us of complete and accurate remittance and tax information. You and we will each bear our own costs except as otherwise specified in this Agreement. The party receiving payment is solely responsible for and will timely pay all applicable taxes (e.g., value added tax, federal and state taxes, sales, use, excise, or transfer taxes) and payment transmission fees. Each party will indemnify the other party, subject to Section 10.3, for all costs, losses, liabilities and expenses, including penalties, arising from any failure to pay taxes when due based on payments received.
3.2 Payment. “Payments” means Revenue Share and Programmatic Payment, as applicable to you.
3.3 Payment Timing. We pay Payments within forty-five (45) days after the end of the calendar month in which the Advertising Revenue is recognized (for Revenue Share) or auction concluded (for Programmatic Payment); amounts under $250 will be held until amounts due equal or exceed $250. Fees for Publisher’s use of Analytics Service are payable net 30 of invoice.
3.4 Disputes and Errors. If you dispute in good faith the amount of any payment, you must notify Tapjoy in writing within thirty (30) days from the date of payment; failure to do so shall be deemed your acceptance of the amount paid and an irrevocable waiver of your right to dispute that payment. If Tapjoy identifies a payment error affecting you (whether over- or under-payment), then we will either (i) apply an offsetting adjustment to the next payment otherwise payable to you, or (ii) pay you (or, if applicable, require you to refund to us) the amount at issue.
3.5 Problem Events. You acknowledge that we have no obligation to pay Payments arising from any Problem Events. We reserve the right, in our reasonable judgment, to delay, suspend, or declare forfeit payment of any Revenue Share or Programmatic Payment that we believe may be based on Problem Events (as defined below), and you agree that if we pay you Revenue Share or Programmatic Payment that is later determined to have been based on a Problem Event, we may, in our sole discretion, either deduct the amount paid from amounts otherwise payable to you, or require you to promptly (within five business days) refund us the full amount. You agree to provide your reasonable cooperation in our investigation of Problem Events and in preventing misuse of our Services, and you agree to promptly notify us of and take steps to mitigate any suspected misuse.
3.6 Definitions. “Problem Events” means (i) issuance of virtual goods or virtual currency through any fraudulent or invalid means; (ii) issuance of virtual goods or currency in connection with any amounts subsequently refunded, credited or subject to a credit card charge-back; (iii) breach of our Publisher Guidelines; (iv) chargebacks by advertisers, or any other action that is fraudulent, invalid, suspicious, noncompliant with Tapjoy terms, or otherwise questionable; in each case as determined in our sole reasonable judgment. “Network Fees” means direct and indirect expenses attributable to account acquisition and management, including but not limited to network-related expenses, adjustments and chargebacks, taxes, refunds, uncollected amounts, agency and partner fees and expense, marketing credits, referral fees, and payment processing fees.
4.2 Ownership. As between the parties, and independent of our respective obligations under the Tapjoy DPA: (a) you own all right, title and license to the Publisher Data and are responsible for its legality, reliability, integrity, accuracy and quality; (b) we own all right, title and license to the Service Data and Reports and are responsible for their legality, reliability, integrity, accuracy and quality (excluding Publisher Data used in generating them); and (c) all right, title and license to the Advertiser Data is owned by the advertisers whose advertisements generated it.
4.3 License Grant to Tapjoy. You hereby grant us a nonexclusive, irrevocable, royalty-free, fully paid up, worldwide right and license to use and reproduce the Publisher Data in connection with our provision and operation of the Services to you and to third parties. Publisher Data used by us in the course of providing our Services to third parties will be used internally only, in an aggregated manner, anonymized to remove reference to you or your application.
4.4 License Grant to You. We hereby grant you a non-exclusive, royalty-free, fully paid up, revocable, non-transferable, non-sub-licensable right and license to use and reproduce Service Data and Reports for your internal business purposes, so long as you comply with our reasonable attribution requirements.
4.5 Advertiser Data. Neither you nor we grant license with respect to Advertiser Data under this Agreement.
9.1 General. Tapjoy and Publisher, each acting on its own behalf, each represent and warrant that: (a) it has and will maintain all necessary rights, power, licenses and authority to enter into this Agreement, to perform the acts required of it under this Agreement, and to permit the other party to perform its obligations contemplated under this Agreement; and (b) it is and will remain in compliance with all applicable laws, statutes, ordinances, and regulations (including but not limited to, any relevant data protection or privacy laws) in the performance of its obligations under this Agreement.
9.2 By Publisher. You further represent, warrant, and covenant that: (a) your applications, including software, documentation and other related information, comply with this Agreement and do not infringe the intellectual property rights, privacy rights or other rights of any person or entity; (b) you will obtain and comply with consents, authorizations and clearances from your users sufficient to allow us to collect, store, and use your Publisher Data; (c) you will comply with this Agreement; and (d) your performance under this Agreement does not and will not violate any contractual or other obligations between you and any third party.
10.1 Publisher Indemnity. Publisher will indemnify, defend and hold harmless Tapjoy and its affiliates, and their respective officers, directors, employees, agents, and contractors, from and against any third-party claims, allegations, losses, costs, liabilities, damages, penalties, settlements, judgments, fees and expenses (including without limitation reasonable attorneys’ fees and expenses) (collectively “Losses”) arising out of or related to any actual or alleged: (a) breach by Publisher, including for purposes of this paragraph its affiliates or their respective officers, directors, employees, agents, or contractors, of any term(s) of this Agreement, including but not limited to its representations, warranties and covenants; (b) claims that your application(s) or any other Publisher products, services, or software infringes any third party’s intellectual property rights, privacy, rights of publicity, or other rights; and (c) failure by Publisher to comply with applicable Law.
10.2 Tapjoy Indemnity. Tapjoy will indemnify, defend and hold harmless Publisher and its officers, directors, and employees from and against any Losses arising out of or related to: (a) claims that the Services infringe any third party’s intellectual property rights, privacy, rights of publicity, or other rights; or (b) Tapjoy’s failure to comply with applicable Law.
10.3 Indemnity Requirements. The indemnifying party reserves the right, at its expense, to provide the indemnified party with prompt written notice of its intention to assume the exclusive defense and control of any matter for which the indemnifying party is required to indemnify the indemnified party (absent which, the indemnified party shall control such defense at the indemnifying party’s cost), and the indemnified party agrees to reasonably cooperate with the indemnifying party’s defense of such claims at the indemnifying party’s expense. The indemnifying party shall not enter into any settlement for which indemnity is sought unless: (a) such settlement includes an unconditional release of the indemnified party and its affiliates from all liability on all claims; and (b) the indemnified party gives its prior written approval, which shall not be unreasonably withheld.
13.1 Governing Law. The parties agree that California law governs this Agreement, without giving effect to its principles of conflicts of law, and to exclusive personal jurisdiction and venue in the state and federal courts in San Francisco, California for any claims brought in court not arbitrated (per below subject to arbitration as set forth below.
13.2 Arbitration. The parties agree to resolve any dispute, claim, or controversy between us arising out of or relating to this Agreement (including over its validity or enforceability) by binding arbitration in San Francisco, California, before a single arbitrator, governed by JAMS pursuant to its Comprehensive Arbitration Rules & Procedures (collectively, “JAMS Rules”), as modified by this Agreement, and administered by JAMS; see http://www.jamsadr.com or call JAMS (1-800-352-5267 for JAMS Rules and fee information. Dispositive motions will be allowed; the arbitrator must follow this Agreement, will have the same power to award damages and relief as a court (including fees), and will issue a binding written decision, which can be enforced by entry of judgment by any court of competent jurisdiction. Both parties agree and understand that, absent this mandatory arbitration provision, the parties would have the right to sue in court and have a jury trial, and further understand that, in some instances, the costs of arbitration could exceed the costs of litigation, and that the right to discovery may be more limited in arbitration than in court.
13.3 Individual Actions Only. EITHER OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF, AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER PARTIES.
13.4 Exceptions. The following are exceptions to the foregoing general agreement to arbitrate: (a) claims concerning intellectual property (i.e., patents, copyrights, moral rights, trademarks) and confidentiality (i.e., over Confidential Information or trade secrets); and (b) small claims, where jurisdiction and venue otherwise qualify for small claims court and where no equitable relief is sought. The parties agree to waive trial by jury in any litigation between them in court (e.g., if the arbitration provision is found unenforceable, or if the matter concerns one of the foregoing exceptions).
Effective Date: September 20, 2019