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Tapjoy reserves the right, at its sole discretion, to change, modify, add or remove portions of the Agreement at any time. You are responsible for checking periodically for changes and 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. Your continued access or use of any of our Services following the posting of changes will mean that you accept and agree to the changes. (References to “you” or “Publisher” mean the person or entity accepting the Terms of Service; references to “we” or “Tapjoy” mean Tapjoy, Inc.).
We offer several services to publishers (collectively, “Services”); use your Tapjoy publisher account via Tapjoy’s online management portal located at https://dashboard.tapjoy.com/ (the “Tapjoy Dashboard” or “Dashboard”) to make selections regarding the Services you wish to use.
“Monetization Services” means the Tapjoy Services that enable you to monetize your application (or “app”) by displaying third-party video advertisements (“ads”), playable ads, advertising offers, or market research survey offers (collectively, “Campaign Content”) to users of your application. Monetization Services include (a) general advertising, in which Campaign Content is sourced directly by Tapjoy from third-party advertisers, agencies, or market researchers (“Campaign Partners”) and (b) “Exchange Services,” in which ads are programmatically sourced from third parties via Tapjoy’s private exchange or a programmatically integrated exchange platform. Publisher acknowledges and agrees that this Agreement governs Publisher’s participation in the Exchange Services. If you do not wish to participate in the Exchange Services, you must opt out of such Exchange Services via Dashboard.
Tapjoy also provides Publisher Services other than monetization, such as virtual currency management, which allows a publisher to have Tapjoy manage its users’ virtual currency accounts, and analytics services, which provides you with information about how your users interact with your application(s).
Once enrolled, you may create a password-protected account in order to use our Services. You represent and warrant that all information you provide to us (including in creating a publisher account) is true, accurate, complete, up-to-date, and solely yours. Publisher accounts are unique to each Publisher and confidential, 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.
All publishers using Services must comply with the following requirements and restrictions, as applicable to the Services they use. A 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.
a. Display of Campaign Content. If you use a Monetization Service, you must display Campaign Content as provided. You are responsible for selecting the Campaign Content maturity level appropriate for your application, consistent with the application’s app store maturity rating.
b. Technical Requirements. You must comply with our onboarding and integration requirements, such as ad unit placement, delivery, code implementation, and our technical specifications. Exceptions must be pre-approved in writing by Tapjoy. You must use our Services only as provided by us, and Campaign Content only as transmitted via our Services, in each case without modification. You agree to use the most current release of our SDK when integrating, and to update your integration upon each major version update; use of outdated versions is at your own risk, and we are not liable for any problems that arise as a result.
_c. Permitted Use Only. _Our Services are intended for your internal use only; you agree to use them accordingly. Our offerwall ad unit (which includes its surveywall variation or similar ad units) must be used on an exclusive basis only, meaning no other offerwall in the same application.
_d. Publisher Guidelines and Platform Agreements. _You must comply with Tapjoy Publisher Guidelines. In addition, your app must be available from a major app store, and you must comply with the requirements imposed by your platform licensors (i.e., Apple, for iOS Applications, and Google, for Android Applications).
e. Prohibited Acts. You agree that you will not, directly or indirectly: (i) store, copy, modify, distribute, or resell any Campaign Content; (ii) compile or collect Campaign Content as part of a database or other work; (iii) use automated tools such as bots or spiders to access or use our Services or to store, copy, modify, distribute, or resell any Campaign Content; (iv) circumvent or disable any digital rights management, usage rules, security features, or other components of our Services; (v) interfere with our Services’ proper working, overburden our infrastructure, or otherwise harm their integrity, performance, or availability; (vi) remove, alter, or obscure any copyright, trademark or other proprietary notices on Campaign Content; or (vii) circumvent our Services’ functionality (e.g., by auto-spawning pages, hijacking an end user’s device, generating spontaneous ad refreshes) or engage in any form of fraud or deception.
**f. Anti-Fraud Measures. **We want your help in preventing fraudulent user actions in advertising. Accordingly, you represent, warrant, and covenant that (a) you have in place and will maintain industry-standard and commercially reasonable measures and efforts to prevent Problem Events, as defined below in Section 3 (Payments); (b) you will maintain commercially reasonable measures to prevent, and will not yourself commit, nor permit, authorize, or encourage any third party to commit: (i) generation of fraudulent impressions or fraudulent clicks; (ii) other fraudulent actions, such as device ID manipulation, circumvention of offer eligibility requirements, or account falsification; or (iii) interference with, disruption, or degradation of our Services, including the servers and networks we use (for example, by using repeated manual clicks, bots, scrapers, or other automated tools, or by breaching our Publisher Guidelines); and (c) you will immediately notify us if you learn of any suspected or confirmed Problem Events or other acts described in the preceding sentence. We have the right to review the impressions, click-throughs, or other actions generated in your applications, and you understand that you are not entitled to receive Payments attributable to Problem Events, each as defined in Section 3 (Payments).
All payments will be made in U.S. dollars, rounded down to the nearest penny, 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 (Indemnity Requirements), for all costs, losses, liabilities and expenses, including penalties, arising from any failure to pay taxes when due based on payments received. All billing and transaction times referenced in this Agreement are on Coordinated Universal Time (UTC).
“Payments” means Revenue Share and Programmatic Payment, as applicable to you.
a. Revenue Share. You will receive the then-current standard Revenue Share based on Advertising Revenue generated through your use of Monetization Services (excluding Programmatic Mediation), net of any amounts due for other offsetting obligations, such as your use of Tapjoy’s advertising services as an advertiser. “Revenue Share” means the percentage of Advertising Revenue payable to Publisher. “Advertising Revenue” means amounts actually paid by advertisers and received and recognized by Tapjoy in connection with ads and offers shown through Monetization Services, less deductions for Network Fees. Payment is based on our measurements, and you agree that our system will be the system of record for calculating amounts payable.
b. Programmatic Mediation. You will also receive payment based upon Tapjoy’s auction wins and the pricing associated with those impressions (“Programmatic Payment”). Payment is based on our measurements, and you agree that our system will be the system of record for calculating amounts payable. Payments are rounded down to the nearest penny.
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), or ninety (90) days if your app offers users the ability to earn real-world rewards (“RWR”); amounts under $250 will be held until amounts due equal or exceed $250.
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.
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.
“Problem Events” means (i) issuance of virtual goods or virtual currency through any fraudulent or invalid means; (ii) issuance of virtual goods or virtual 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 other Campaign Partners, or (v) 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.
We are responsible for the legality, reliability, integrity, accuracy, and quality of Platform Usage Data and Reports (excluding Publisher Monetization Data used in generating them). You may use and reproduce Platform Usage Data and Reports for your internal business purposes, so long as you comply with our reasonable attribution requirements. And, as between you and us, we (and our Campaign Partners) own all right, title, and license to Campaign Data.
You are responsible for the legality, reliability, integrity, accuracy, and quality of Publisher Monetization Data. You hereby acknowledge and agree that we may use and reproduce the Publisher Monetization Data in connection with our provision and operation of the Services to you and to third parties. Publisher Monetization 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.
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 our SDK, as integrated in your application(s), as needed to use our Service.
No licenses are granted with respect to Campaign Data under this Agreement.
As between the parties, and subject to the licenses expressly granted in this Agreement: You and your licensors own and will retain all right, title, and interest in and to (a) your Application(s), and we and our licensors own and will retain all right, title, and interest in and to our Services, including all related information and software (and improvements and updates).
Each of us agrees not to disclose the other’s Confidential Information, and to use it only to fulfill its obligations or exercise its rights under this Agreement. “Confidential Information” means information identified as “confidential” or “proprietary” or that should reasonably be understood to be confidential. For purposes of this Agreement, Campaign Content (before publication) and Campaign Data; our pricing, pricing structures, revenue, suppliers, customers, financial model, and methodologies; and Platform Usage Data and Reports, are deemed Tapjoy Confidential Information; and your application(s) (before release) are deemed Publisher Confidential Information. A party may disclose the other party’s Confidential Information to its officers, directors, employees, contractors, and/or advisors with a need to know, provided that they are under an obligation of confidentiality no less protective than this one. Confidential Information does not include information that was independently developed by the receiving party, that is or becomes publicly known without the receiving party’s fault, or that was lawfully received from a third party without breach of confidentiality. The receiving party may disclose Confidential Information without breach of this Section, if required by act of law or order, provided that it gives the other party prompt notice of the requirement before disclosure, limits disclosure as much as possible, and provides its reasonable assistance to the other party if it seeks to obtain an order to protect the information from public disclosure. Upon the disclosing party’s reasonable request or the termination of this Agreement, the receiving party will promptly return or destroy the disclosing party’s Confidential Information and, upon request, certify in writing its return or destruction.
We reserve the right, in our sole discretion, to reject or remove any application and to restrict or suspend your access to or use of our Services, in each case at any time and with or without notice, without liability to you. Either you or we may terminate this Agreement for convenience upon thirty (30) days’ written notice. Termination does not relieve you or us of any obligation to pay amounts due and owing as of the termination date; that obligation survives termination. After termination, you will promptly (within five (5) business days) cease distribution of any application that incorporates the SDK and provide us with written certification that you have done so.
You hereby grant us a royalty-free, fully paid up, sub-licensable, transferable, nonexclusive, worldwide, and perpetual license to reproduce, display, distribute, and otherwise use, in connection with our Services, the trademarks, service marks, logos or other indicia of origin associated with you and your application(s) (your “Marks”), for the purpose of promoting you and your application(s) in our advertising, marketing, promotions and promotional materials. You agree that we may use your Marks on our website to show your participation and use of our Services; for other proposed uses of your Marks, we will request your prior written approval.
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 Applicable Data Protection Laws) in the performance of its obligations under this Agreement.
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 “Claims”) 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 any applicable laws.
Tapjoy will indemnify, defend, and hold harmless Publisher and its officers, directors, and employees from and against any Claims 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 any applicable laws.
The indemnified party will promptly notify the indemnifying party of all Claims of which it becomes aware; failure or delay in providing such notice will not relieve the indemnifying party’s obligations, except to the extent such party is prejudiced by such failure or delay. 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 Claim or 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 or settlement of such Claims at the indemnifying party’s expense. The indemnified party is entitled to participate at its own expense in the defense of all Claims. 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 Claims; and (b) the indemnified party gives its prior written approval, which shall not be unreasonably withheld.
WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, IN CONNECTION WITH OUR PROVISION OR YOUR USE OF OUR SERVICES, OTHER TAPJOY PRODUCTS OR SERVICES, AND CAMPAIGN CONTENT, IN EACH CASE TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OUR SERVICES, INCLUDING THE SDK, ARE PROVIDED “AS-IS” AND WITHOUT WARRANTIES OF ANY KIND; THIS INCLUDES, WITHOUT LIMITATION, WARRANTIES OF PERFORMANCE AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHER, WE DO NOT REPRESENT OR WARRANT THAT OUR SERVICES ARE OR WILL BE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, VIRUS-FREE, OR UNINTERRUPTED. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU. WE DO NOT WARRANT OR GUARANTEE: (A) THE RESULTS OF USE OF OUR SERVICES, INCLUDING THAT PUBLISHER WILL EARN ANY PARTICULAR AMOUNTS (OR ANY AMOUNTS AT ALL); (B) THE RESULTS OF ANY SERVICES PROVIDED BY TAPJOY; OR (C) THE ACCURACY OR COMPLETENESS OF REPORTS. Without limiting the generality of the foregoing, you acknowledge that some of our Services are based, in whole or in part, on an auction model and the independent decisions of third-party mobile app users and Campaign Partners, and consequently that some of the main factors that determine the revenue from our Services are not within our control. You acknowledge and agree that we are not affiliated with or responsible for any third-party products or services displayed, distributed or otherwise promoted through our Services, including the Campaign Content related to those products or services. We neither represent nor endorse the quality, accuracy, reliability, integrity or legality of any third-party products or services, nor the truth or accuracy of the description of any Campaign Content, including ads, offers, links, content, advice, opinions, offers, proposals, statements, data, or other information, provided by third parties and displayed, distributed, or otherwise used on or in connection with our Services.
IN NO EVENT WILL TAPJOY BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS ARISING OUT OF THIS AGREEMENT, EVEN IF WE KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR MAXIMUM AGGREGATE LIABILITY IN RESPECT OF ALL LOSSES ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED ONE HUNDRED DOLLARS ($100) USD. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU; IN SUCH CASES, THE TAPJOY PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. THIS LIMITATION OF LIABILITY PROVISION IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. WE WOULD NOT PROVIDE OUR SERVICES WITHOUT SUCH LIMITATIONS, AND YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, DISCLAIMERS, AND EXCLUSIVE REMEDIES SPECIFIED IN THIS AGREEMENT ARE FAIR AND REASONABLE AND WILL SURVIVE EVEN IF OUR SERVICES, THIS AGREEMENT OR ANY ELEMENT OF IT IS FOUND TO HAVE FAILED IN ITS OR THEIR ESSENTIAL PURPOSE. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE RAISED WITHIN TWELVE (12) MONTHS FROM THE DATE OF ITS ACCRUAL, OR IT SHALL BE FOREVER WAIVED. IF YOU ARE DISSATISFIED WITH ANY ASPECT OF THE TAPJOY SERVICES OR THIS AGREEMENT AT ANY TIME, YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING OUR SERVICES AND TERMINATE THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY 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 not arbitrated as set forth below.
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.
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.
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: August 5, 2021_