THESE TAPJOY ADVERTISER TERMS OF SERVICE (THE “TERMS OF SERVICE”) GOVERN YOUR USE OF THE SERVICES WE OFFER ADVERTISERS. BY CLICKING TO ACCEPT THESE TERMS OF SERVICE, OR BY EXECUTING AN INSERTION ORDER OR OTHER FORM THAT REFERENCES THESE TERMS OF SERVICE, YOU AGREE TO THESE TERMS OF SERVICE, EFFECTIVE ON THE DATE YOU CLICK OR SIGN. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY ON WHOSE BEHALF YOU ARE ENTERING INTO THIS THESE TERMS OF SERVICE. IF YOU DO NOT HAVE THAT AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, THEN YOU SHOULD NOT ACCEPT THESE TERMS OF SERVICE AND ARE NOT AUTHORIZED TO ACCESS OR USE OUR ADVERTISING SERVICE.
(References to “you” or “Advertiser” mean the person or entity accepting these Terms of Service; references to “we” or “Tapjoy” mean Tapjoy, Inc.)
Advertiser and Tapjoy agree as follows:
1. Advertising Services
1.1 Advertiser and Tapjoy shall mutually agree upon the terms of an insertion order (or other contracting mechanism, as applicable) (referred to herein as an “Insertion Order” or “IO”) setting forth the details of the advertising campaign, which details may include among others: the type and quantity of ad placements, the rate price per ad placement, the maximum budget allotted to the campaign, the flight and campaign dates, etc., and which shall incorporate by reference these Terms of Service.
1.2 Advertiser will deliver the Advertisements (defined below) and implement conversion tracking in accordance with the applicable technical specifications provided by Tapjoy, and Tapjoy will make commercially reasonable efforts to serve the Advertisements to the Inventory (defined below) in accordance with the applicable Insertion Order (the “Advertising Service”). As between the parties, Advertiser is solely responsible for any and all costs Advertiser incurs for the production and delivery of the Advertisements in accordance with the aforementioned technical specifications and for any programming undertaken by Advertiser related thereto. Advertiser is solely responsible for the content of any Advertisement, and Tapjoy will not make modifications or alterations thereto without Advertiser’s prior written consent except as required for or otherwise incidental to any technical implementation by Tapjoy of an Advertisement.
1.3 Advertiser may select a particular implementation of the Advertising Service through the Tapjoy dashboard located at https://dashboard.tapjoy.com/ or at such other URL as provided by Tapjoy from time to time (the “Tapjoy Dashboard”). Advertiser may use the Tapjoy Dashboard to specify certain requirements of a particular advertising campaign covered by an IO, including setting the campaign budget, sums to be spent on a daily basis, and dates / targets for delivery of Advertisements. Advertiser acknowledges that the sums allocated for a particular day, targets for delivery, and budget allocation between ad units are estimates and not guaranteed. To this end, Tapjoy shall not be liable for sums spent by Advertiser on a particular day which are less than or more than the intended amount. By way of example, if Advertiser sets a daily spend limit, it may be necessary for Tapjoy to deliver Advertisements in excess of the corresponding conversion amounts, in anticipation that not all Advertisements delivered will be converted. Advertiser acknowledges that placement and promotion of Advertisements shall be, as between the parties, at Tapjoy’s discretion.
1.4. Upon enrollment, you may create a password-protected Tapjoy Dashboard account. Advertiser accounts are personal to each Advertiser, and may not be shared with or serviced by third parties except to the extent you authorize an agency to operate your account on your behalf. You are responsible for protecting the security of your 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 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. License
Advertiser hereby grants to Tapjoy the worldwide, non-sublicensable (except to the extent required by Tapjoy to fulfill the purposes hereof), non-exclusive, royalty-free, fully paid up, right and license to use, serve, copy, reproduce, distribute and display, in any medium now known or hereafter developed, the advertisements and all related content, materials and metadata submitted by Advertiser to Tapjoy (collectively, “Advertisement(s)”), along with the data referenced in Section 14 below.
3. Service Circumvention; Competitive Services
3.1. Advertiser acknowledges the unique value of using the Advertising Service to access the various types of advertising placement inventory on which Tapjoy has a contractual right to serve Ads (the “Inventory”). To this end, Advertiser will not (a) modify or interfere with the Advertising Service, including systems for calculating conversions; or (b) knowingly bypass or circumvent the Advertising Service, including by engaging directly with such Tapjoy Publishers or partners to access their advertising inventory during the term of this Agreement. By way of example, and without limiting the generality of the foregoing, Advertiser shall not create or attempt to create a linking or other arrangement circumventing the Advertising Service such that Tapjoy is unable to fully track and monitor the conversions and other events that are the basis for calculating the payments owed by Advertiser to Tapjoy. For all pay-per-install campaigns, Advertiser must ensure that its systems promptly notify Tapjoy the first time the relevant application is installed and opened.
3.2. Advertiser acknowledges that the Advertising Service is not available to entities that run, provide, enable or promote similar advertising services, whether for themselves or for others. Advertiser represents, warrants and covenants that it is not such an entity and that it shall not act, directly or indirectly, on its own behalf or on behalf of a third party, in such a capacity during the term of this Agreement.
4. Payment Terms; Reporting
4.1. Advertiser will pay Tapjoy for all conversions generated during each advertising campaign, whether or not Advertiser has reported such transactions to Tapjoy. Tapjoy’s system will be the exclusive system of record for all reporting and calculations. The attribution window used for purposes of calculating conversions runs for the applicable campaign period, plus: (a) forty-eight (48) hours, for campaigns using cost per install (“CPI”) measurements; (b) seven (7) days, for video to install (“V2I”) campaigns; and (c) an unlimited period of time, for campaigns using cost per engagement (“CPE”) or cost per action other than install (“CPA”) measurements. Cost per view (“CPV”) measurements are charged upon media completion, which for videos and non-video playables includes media completion and/or user interaction resulting in media completion, and for playables (non-video), includes user click or playable completion. For the avoidance of doubt, conversions are billable if occurring within the attribution window if commenced before campaign termination or pause. Conversions validated by Tapjoy’s customer service department are automatically deemed within the applicable attribution window and constitute chargeable events. Added-value (“AV”) placements set forth on an IO are non-guaranteed estimates, included for reference only; AV fulfillment (or lack thereof) does not affect campaign billing or reporting. Advertiser will pay Tapjoy amounts based on Tapjoy’s invoice. Payments are due ten (10) days after receipt of invoice. Without waiver to such payment obligation, if Advertiser, in good faith, disputes any amount due, then Advertiser shall provide notice to Tapjoy on or before the invoice payment due date. Advertiser acknowledges and agrees that (a) failure to notify Tapjoy of disputed amounts within said 10-day time period shall be deemed acceptance of the applicable invoice and waiver of any right to dispute the invoiced amount, and (b) no credit will be provided to Advertiser on conversions based on user chargebacks of the underlying Advertiser transaction. Tapjoy reserves the right to charge, and Advertiser agrees to pay, interest on amounts due but not paid in the time frame set forth above an amount equal to the lesser of one and one-half percent (1.5%) per month or the maximum amount permitted by applicable law. Any pre-paid account balances are non-refundable and will be reduced to offset amounts owed as they are incurred, and Advertiser hereby consents to such right of offset. For all other amounts requiring adjustments, in lieu of cash payments, Tapjoy reserves the right to offer marketing credits in the form of non-monetizable and non-transferable credits issued for promotion through the Advertising Service. Such credits, if any, shall be Advertiser’s sole and exclusive remedy regarding any claim asserting non-fulfillment, in whole or in part, of an Insertion Order. All billing and transaction times referenced in the Agreement are on Coordinated Universal Time (UTC). All amounts shall be invoiced and paid in United States dollars and do not include taxes that may be assessed by any jurisdiction or transmission fees that may be assessed by Advertiser’s banking institution, each of which shall be Advertiser’s sole responsibility. If withholding taxes or other taxes are imposed by any jurisdiction on the transactions made pursuant to this Agreement, Advertiser will promptly pay such taxes to ensure that Tapjoy receives the full amount invoiced to Advertiser without offset or deduction. Upon payment of such taxes, Advertiser will furnish to Tapjoy the applicable receipts and/or certificates regarding such remittances as soon as reasonably practicable and in any case within five (5) business days of written request.
4.2. Advertiser shall provide Tapjoy with all reporting required in order to satisfy the requirements of the Advertising Service, including reporting used to calculate sums owed to Tapjoy. To this end, Advertiser shall use all tracking and other technology reasonably required by Tapjoy including, as applicable, the Tapjoy SDK or a third party SDK approved by Tapjoy. If a third party SDK or other technology is used, then Advertiser shall provide Tapjoy with all information necessary in order for Tapjoy to access applicable data made available therefrom, including any username and password. Except where otherwise provided through the aforementioned technology, such reporting shall be sent to Advertiser’s account manager at Tapjoy or to accountsreceivable@tapjoy.com.
4.3. To integrate the Tapjoy SDK, you may download it from the Tapjoy SDK download website located at https://ltv.tapjoy.com/d/sdks or at such other URL as provided by Tapjoy from time to time. You agree to comply with applicable license requirements and to always integrate the then-current version of the SDK.
5. Fraud
Tapjoy employs systems designed to detect and filter potentially fraudulent or invalid Advertisement conversion activity, but such systems cannot guarantee detection of all potentially suspect activity. Accordingly, Advertiser is responsible for identifying and reporting any such alleged activity to Tapjoy as soon as possible and, in any case, within thirty (30) days from the date of receipt the applicable invoice. Advertiser shall timely notify Tapjoy in writing of any such activity by emailing both Advertiser’s Tapjoy account manager and also discrepancy@tapjoy.com.
6. Content
Advertiser acknowledges and agrees that Tapjoy is not responsible and has no liability whatsoever for the Advertisements or any content with which the Advertisements may be associated through Advertiser’s website or other properties, and that Tapjoy has no obligation to monitor the foregoing. Advertiser is solely responsible (and assumes all liability and risk) for determining whether or not such content is appropriate or acceptable. Notwithstanding anything to the contrary stated in the Agreement, Tapjoy reserves the right at its discretion and without notice, to remove or refuse to distribute any Advertisement through the Advertising Service or any content associated therewith.
7. Compliance with Laws; Misuse of Advertising Service
Advertiser represents, warrants, and covenants that it will use the Advertising Service and provide Advertisements in compliance with all applicable local, state, national and international laws, rules and regulations, including the CAN-SPAM Act of 2003 and any applicable data protection laws. As a condition on using our Services, Advertisers providing Tapjoy with personal data originating from individuals in the European Economic Area or Switzerland agree to be bound by our Tapjoy DPA, absent entry into a separate written agreement with us with substantially similar terms regarding our respective obligations under Applicable Data Protection Laws, as defined therein. Advertiser will not, will not agree to, and will not permit, authorize, or encourage any third party to: (a) use the Advertising Service to transmit or otherwise distribute any Advertisement or content that is unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene, that contains viruses, or is otherwise objectionable, as reasonably determined by Tapjoy; (b) interfere or attempt to interfere with the proper working of the Advertising Service or prevent others from accessing or using the Advertising Service; or otherwise (c) use the Advertising Service in a manner not expressly authorized hereunder or for any fraudulent or unlawful purpose. Breach or violation of any of the foregoing may result in immediate termination of this Agreement, at Tapjoy’s sole discretion, and may subject Advertiser to state and federal penalties and other legal consequences. Advertiser will promptly notify Tapjoy in writing if it learns of any potential breach of any of subparts (a) through (c) or of any potentially fraudulent or abusive activity. Without waiver of Advertiser’s obligations, Tapjoy reserves the right, without obligation, to review the Advertisements and Advertiser’s use of the Advertising Service in order to determine whether a breach of this Agreement has occurred or to comply with any applicable law, regulation, legal process, or governmental request.
8. Representations, Warranties and Covenants
Without limiting any other representation, warranty, or covenant of either party herein, each party hereby represents, warrants and covenants to the other that: (a) it has the full right, power and authority to enter into and perform this Agreement; (b) this Agreement is a valid and binding obligation of such party; and (c) it has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations. Without limiting any other representation, warranty or covenant herein, Advertiser hereby represents and warrants that (i) it has the right to grant the rights granted herein; (ii) no Advertisement contains any material that infringes upon or violates any third-party right, including rights arising from contracts between Advertiser and third parties, copyright, trademark, class action, patent, consumer protection laws, trade secret, moral rights, or any other intellectual property or proprietary right, or slanders, defames, libels, or invades the right of privacy, publicity, or other rights of any person; (iii) no Advertisement provided by it contains any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, or other computer programming routines that may potentially damage or interfere with the Advertising Service, or intercept or expropriate any system data or personal information from the Advertising Service; and (iv) any Advertisements directed to youths (meaning users younger than 18) will comply with the guidelines of the Children’s Advertising Review Unit in the U.S., or the applicable local equivalent where the Advertisements will be displayed.
9. Indemnification
Each party will indemnify, defend and hold harmless the other and its affiliates and each of their respective officers, directors, employees, and agents from and against any losses, costs, liabilities, damages, claims and expenses, including reasonable attorneys’ fees, arising out of any breach of the representations, warranties and covenants made by such party herein. The indemnifying party reserves the right, at its expense, to assume the exclusive defense and control of any matter for which it is required to indemnify the indemnified party, and the indemnified party agrees to reasonably cooperate with the indemnifying party’s defense of such claims and shall have the right to participate with counsel of its own choosing at its own expense. The indemnifying party will not enter into any settlement of any claim without the prior written consent of the indemnified party, such consent not to be unreasonably withheld or conditioned.
10. Disclaimers; No Warranties
10.1 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 ABOVE, TAPJOY ON BEHALF OF ITSELF AND ITS SUBSIDIARIES AND AFFILIATES DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING BY STATUTE, CUSTOM, COURSE OF DEALING OR TRADE USAGE, WITH RESPECT TO ANY MATTER, INCLUDING BUT NOT LIMITED TO: ADVERTISING; THE ADVERTISING SERVICE; APPLICATION ADVERTISERS; APPLICATIONS, INCLUDING BUT NOT LIMITED TO APPLICATIONS IN THE INVENTORY AND ANY APPLICATION(S) IN WHICH ADVERTISEMENTS ARE PLACED; THE TAPJOY SDK; AND ANY OTHER TAPJOY PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, TITLE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR UNINTERRUPTED OR ERROR-FREE SERVICE. TAPJOY MAKES NO GUARANTEE REGARDING THE VOLUME OR TIMING OF ACTIONS IN CONNECTION WITH THE ADVERTISING SERVICE. TAPJOY DOES NOT WARRANT THE RESULTS OF USE OF THE ADVERTISING SERVICE, INCLUDING THE RESULTS OF ANY ADVERTISING CAMPAIGN, AND ADVERTISER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TAPJOY DISCLAIMS ALL GUARANTEES REGARDING POSITIONING, RANKING, RATING, LEVELS, OR TIMING OF: (A) ADVERTISEMENTS’ DELIVERY ON SPECIFIC PUBLISHERS’ INVENTORY; OR (B) CLICKS, CONVERSION RATES, OR OTHER USER ACTIONS. ADVERTISER ACKNOWLEDGES THAT THE ADVERTISING SERVICE IS BASED, IN WHOLE OR IN PART, ON AN AUCTION MODEL, AND CONSEQUENTLY VOLUMES VARY BASED ON PRICE, CONVERSION RATES, AND OTHER FACTORS THAT MAY NOT BE WITHIN TAPJOY’S CONTROL.
10.2 You acknowledge and agree that Tapjoy is not affiliated with or responsible for any third-party products or services displayed, distributed or otherwise promoted in connection with the Tapjoy Advertiser Services, including without limitation, your Advertisements. Tapjoy neither represents nor endorses the quality, accuracy, reliability, integrity or legality of any third party products or services, nor the truth or accuracy of the description of any Advertisements, links, content, advice, opinions, offers, proposals, statements, data or other information from any third party products or services that are displayed, distributed or otherwise used in connection with the Tapjoy Advertiser Services.
11. Limitation of Liability and Damages
UNDER NO CIRCUMSTANCES WILL TAPJOY OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, DATA OR BUSINESS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE, WARRANTY OR OTHERWISE), EVEN IF SUCH PARTY OR SUCH PARTY’S AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL TAPJOY’S OR ITS AFFILIATES’ TOTAL LIABILITY TO ADVERTISER OR TO ANY OTHER PARTY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNT RECEIVED BY TAPJOY FROM ADVERTISER FOR THE INSERTION ORDER TO WHICH THE CLAIM RELATES IN THE IMMEDIATELY PRECEDING SIX (6) MONTH PERIOD. ADVERTISER SHALL NOT, AND HEREBY WAIVES THE RIGHT TO, COMMENCE ANY ACTION, SUIT OR PROCEEDING AGAINST TAPJOY MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM FIRST AROSE.
12. Ownership
12.1 As between the parties, Tapjoy owns and will retain all rights, title, and interest in and to the Advertising Service, including all software and data related thereto. Advertiser acknowledges that such software and data (including any usage data or compilations thereof but expressly not including any user information submitted to Advertiser through the Advertising Service) are copyrighted by Tapjoy and may contain trade secrets or other intellectual property owned by Tapjoy. Advertiser will not copy, alter, modify, or create derivative works of the Advertising Service or otherwise use the Advertising Service in any way that violates the restrictions contained in this Agreement. For the avoidance of doubt, Tapjoy does not grant to Advertiser any license, express or implied, to the intellectual property of Tapjoy or its licensors.
13. Confidentiality
13.1 “Confidential Information” means any information designated in writing, or identified orally at the time of disclosure, by the disclosing party as “confidential” or “proprietary.” For the avoidance of doubt, the Advertisements, prior to publication, are Advertiser’s Confidential Information; and the existence or content of the Agreement, as well as all statistics or other data relating to the Advertising Service, are Tapjoy’s Confidential Information. During the term of this Agreement, and for a period of two (2) years following termination, subject to the terms of Section 14 (“Data”) below, each party will keep confidential, and neither party will use or disclose, Confidential Information of the other party, except as specifically contemplated herein. The foregoing restriction does not apply to information that: (a) has been independently developed by the receiving party without use of or access to the other party’s Confidential Information and without any breach of any this Agreement; (b) is or has become publicly known through no breach of this Section 13 by the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure and unencumbered by any duty to confidentiality; or (d) has been approved for release in writing by the disclosing party. Disclosure of Confidential Information that is required by a competent legal or governmental authority to be disclosed shall not constitute a breach of this Section 13, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure.
13.2 Tapjoy reserves the right to access, read, preserve and disclose any information, including Confidential Information, as it reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request; (b) enforce this Agreement, including investigation of potential violations hereof; (c) detect, prevent, or otherwise address fraud, security, or technical issues; (d) respond to user support requests; or (e) protect the rights, property or safety of Tapjoy, its users and the public.
14. Data
Notwithstanding anything to the contrary stated in Section 13 (“Confidentiality”) above, Advertiser acknowledges that Tapjoy receives and uses various data concerning users in connection with the Advertising Service as further described in the Tapjoy Privacy Policy located at https://www.tapjoy.com/legal/advertisers/privacy-policy/ or at such other URL as provided by Tapjoy from time to time (the “Privacy Policy”). Advertiser represents and warrants that Advertiser has in place notice and consent mechanisms sufficient to allow use by Tapjoy of data provided by or on behalf of Advertiser to Tapjoy in connection with the Advertising Service for conversion tracking, provision, monitoring, improvement and diagnosis of the Advertising Service and otherwise in accordance with the Privacy Policy and, if applicable, the Tapjoy DPA. The terms of this Section 14 (“Data”) shall survive the expiration or termination of the Agreement for any reason.
15. Term; Termination
15.1 The term shall commence on the acceptance of these Terms of Service and continue until either party terminates this Agreement as set forth herein. Tapjoy may terminate this Agreement immediately upon written notice to Advertiser. Advertiser may terminate this Agreement upon fifteen (15) days prior written notice to Tapjoy. For the avoidance of doubt, the termination of this Agreement shall also terminate any outstanding IO’s between the parties.
15.2 In the event of any termination, Advertiser will remain liable for any and all amounts due under the Agreement through the effective date of termination and, in the case of Post Campaign Conversions, whenever such conversions arise, and such obligation to pay shall survive any termination of this Agreement.
15.3 The following sections of these Terms of Service shall survive expiration or termination of the Agreement for any reason: 2, 4.1, 5-14, 15.2, 15.3, 16-20.
16. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S., without giving effect to principles of conflicts of law.
17. Dispute Resolution/Arbitration. Please Read This Section Carefully – It May Significantly Affect Your Legal Rights, Including Your Right To File A Lawsuit In Court And To Have A Jury Hear Your Claims. Tapjoy and Advertiser agree that these Terms of Service affect interstate commerce and that the Federal Arbitration Act governs the interpretation of these arbitration provisions.
17.1 Informal Resolution. In the event of a dispute, claim, or controversy arising out of or relating to these Terms of Service (including with respect to their validity or enforceability), the Tapjoy Advertiser Services, any person’s or entity’s access to and/or use of the Tapjoy Advertiser Services, and/or the provision of content, products, services, and/or technology on or through the Tapjoy Advertiser Services, Tapjoy or you must first give the other notice of the dispute, claim, or controversy, and the notice must include a brief written statement that sets forth the name, address, and contact information of the party giving it, as well as the facts giving rise to the dispute, claim, or controversy and the relief requested. Notices must be made in accordance with Section 19 hereof. Tapjoy and you will attempt to resolve any dispute, claim, or controversy through informal negotiation within thirty (30) days from the date that any notice of dispute, claim, or controversy is sent. Tapjoy and you shall use reasonable, good faith, efforts to settle any dispute, claim, or controversy through consultation and good faith negotiations. After 30 days, Tapjoy or you may resort to the other alternatives described in this Section. Notwithstanding the foregoing, the notice and 30 day negotiation period required by this paragraph shall not apply to Excluded Claims as defined below.
17.2 Formal Resolution by Arbitration. Except as otherwise specifically set forth below, any dispute, claim, or controversy of any kind between Tapjoy and you arising out of or relating to these Terms of Service (including with respect to their validity or enforceability), the Tapjoy Advertiser Services, any person’s or entity’s access to and/or use of the Tapjoy Advertiser Services, and/or the provision of content, products, services, and/or technology on or through the Tapjoy Advertiser Services, if unresolved through informal discussions within thirty (30) days of the sending of the notice described above, shall be resolved by binding arbitration to be held in San Francisco, California, U.S. The arbitration shall be conducted by a single arbitrator, governed by JAMS pursuant to its Comprehensive Arbitration Rules & Procedures (collectively, “JAMS Rules”), as modified by these Terms of Service, and administered by JAMS. The JAMS Rules and fee information are available at https://www.jamsadr.com/ or at such other URL as JAMS may provide from time to time, or by calling JAMS at + 1-800-352-5267. The decision of the arbitrator will be in writing and binding and conclusive on Tapjoy and you, and judgment to enforce the decision may be entered by any court of competent jurisdiction. Tapjoy and you agree that dispositive motions, including without limitation motions to dismiss and motions for summary judgment, will be allowed in the arbitration. The arbitrator must follow these Terms of Service and can award the same damages and relief as a court, including injunctive or other equitable relief and attorney’s fees. Tapjoy and you understand that, absent this mandatory arbitration provision, Tapjoy and you would have the right to sue in court and have a jury trial. Tapjoy and you 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.
17.3 Excluded Claims. Notwithstanding the foregoing, disputes, claims, or controversies concerning (i) patents, copyrights, moral rights, trademarks, Confidential Information, or trade secrets; (ii) claims of piracy or unauthorized use of the Tapjoy Advertiser Services; or (iii) your failure to pay fees or the recovery of money owed by you to Tapjoy (collectively, “Excluded Claims”) shall not be subject to required arbitration. You or Tapjoy may choose to pursue a claim in small claims court where jurisdiction and venue over you and Tapjoy otherwise qualify for such small claims court and where the claim does not include a request for any type of equitable relief. If for any reason a claim, dispute or controversy between Tapjoy and you is before a court (e.g., if the arbitration provisions are found unenforceable or if pursuant to these Terms of Service the matter is not subject to arbitration), Tapjoy and you agree to exclusive personal jurisdiction and venue in the state and federal courts located in San Francisco, California and agree to waive, to the fullest extent allowed by law, any trial by jury.
17.4 Applicability. This Section 17 will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of Tapjoy, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Terms of Service (including with respect to their validity or enforceability), the Tapjoy Advertiser Services, any person’s or entity’s access to and/or use of the Tapjoy Advertiser Services, and/or the provision of content, products, services, and/or technology on or through the Tapjoy Advertiser Services.
18. Feedback
All comments, feedback or materials submitted by Advertiser to Tapjoy including feedback, testimonials, images, reviews, questions, comments, suggestions or ideas (collectively, “Feedback”) shall be received and treated by Tapjoy on a non-confidential and unrestricted basis. Tapjoy will be free to use, display, perform, distribute, copy, adapt, and promote, in any medium now known or later developed, without compensation to Advertiser, the Feedback along with all ideas, concepts, know-how, techniques or methodologies contained in such Feedback, for any purpose whatsoever, including without limitation, developing, marketing and selling products and services incorporating such Feedback. Advertiser agrees that, in submitting Feedback, it will not violate any right of any third party, including any confidentiality, copyright, trademark, privacy or other personal or intellectual property or proprietary rights, and will not cause injury to any person or entity. Advertiser further agrees that no Feedback Advertiser submits will be or contain libelous or otherwise unlawful, threatening, abusive or obscene material, or contain viruses, commercial solicitations, or any form of “spam.”
19. Notices
Any notice provided pursuant to the Agreement shall be provided in accordance with this Section 19. Notices to Advertiser shall be sent by email to the address provided for Advertiser in the Tapjoy Dashboard or in the then most current Insertion Order. Notices to Tapjoy shall be sent by email to Advertiser’s Tapjoy account manager, with a copy to legal@tapjoy.com. Notwithstanding the foregoing, any notice concerning termination, breach, indemnification or other legal matters shall also concurrently be sent by overnight courier or by prepaid, U.S. certified mail, return receipt requested, to Tapjoy at: Tapjoy, Inc., 353 Sacramento Street, 6th Floor, San Francisco, CA 94111 USA, Attn: Legal Department.
20. Miscellaneous
The words “include” and “including” and variations thereof will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” The Agreement, and any rights and licenses granted hereunder, may not be transferred, or assigned by Advertiser without Tapjoy’s prior written consent, provided, however, that Advertiser may assign the Agreement without such consent to any entity (provided that it is not a competitor of Tapjoy) in connection with the merger, consolidation, sale of all or substantially all of its assets, or any other transaction in which more than fifty percent (50%) of Advertiser’s voting securities are transferred. Tapjoy may freely transfer or assign any or all of its rights and obligations associated with this Agreement at any time. This Agreement shall inure to the benefit of and be binding upon each party’s respective successors and assigns. Tapjoy and Advertiser are independent contractors, and neither Tapjoy nor Advertiser is an agent, representative or partner of the other. This Agreement, including the DPA if applicable, sets forth the entire agreement between Tapjoy and Advertiser, and supersedes any and all prior and concurrent agreements (whether written or oral) with respect to the subject matter hereof. In the event of any conflict or inconsistency between an applicable Insertion Order and these Terms of Service, the terms of the Insertion Order shall govern and control. The terms of any Insertion Order may only be modified upon mutual written agreement of the parties executed by representatives of each party, respectively; provided, however, that certain IO modifications, including modifications to bid price and campaign dates, shall be deemed effective upon email confirmation by Advertiser to Tapjoy. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect. Neither party shall be responsible for failure to perform any obligations hereunder (other than the obligation to pay amounts due) due to a cause beyond its reasonable control, including, without limitation, terrorism, fire, civil disturbance, war, rebellion, earthquake, flood and similar occurrences, provided that performance shall resume as soon as possible after the cause no longer prevents performance. The use of headings herein is for convenience only and shall not be used to interpret this Agreement.
Effective Date: September 20, 2019