Last updated: September 17, 2015
This 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 provided by Chartboost (the “Online Services”), and the subject matter of this Agreement. This Agreement may be amended at any time by Chartboost without specific notice to You. The latest Agreement will be posted on Chartboost.com (the “Site”), and You should review this Agreement prior to using the Site or the Online Services.
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) which use 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 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 and (ix) 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. In addition, You or Your selected third-party attribution platform must notify Chartboost when an application is opened by the user. Advertisers must be pre-approved in writing in order to use third-party attribution data (“Attribution Data”). Attribution Data includes all sessions for the applicable app, as well as attributed installs to Chartboost. You will be solely responsible for all, without limitation, Online Services Ad content, Online Services Ad information, Attribution Data, Online Services Ad URLs, editorial, text, graphic, audiovisual, and other content and any other information You enter into the Online Services, whether generated by or for You (“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 in-app purchase (IAP) information. You will not permit access to the third party unless and until it 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 use the Online Services only with free 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 online casinos and gambling, (viii) promote weapons or ammunition, (ix) promote hard alcohol, (x) could harm minors in any way, or (xi) 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”). 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 terminated within ten (10) business days of Chartboostʼs receipt of Your notice. If You violate this Agreement, Chartboost may in its sole discretion, 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 terminate this Agreement, or suspend or terminate the participation of Your Online Services App in all or part of the Online Services, with or without cause, upon thirty (30) days’ prior notice.
4. Online Services Advertiser Obligations. You will be solely responsible for all matters related to Your third party advertisers who provide advertisements to You in connection with the Online Services (“Online Services Advertisers”), including without limitation the solicitation and trafficking of Online Services Ads, billing and payment of Online Services Advertisers, providing all technical support services to Online Services Advertisers, and handling all other inquiries and disputes of any type or nature.
5. Online Services Fee. Some of the services in the Online Services require payment of fees. Chartboost reserves the right to change its price list and to institute new charges at any time, upon thirty (30) days’ prior notice to You, which may be sent by email or posted on the Site. If You are an advertiser, You will pre-pay all applicable fees, as described on the Site. If You are an advertiser and choose to run a Cost Per Install (“CPI”) campaign without having properly integrated either the Chartboost SDK or a valid server-to-server connection, You will be charged $0.04 per click for all the clicks delivered in that campaign, and the campaign will be automatically terminated when detected. Impressions and clicks are tracked instantly. Installs are tracked whenever a user opens the application they have downloaded. When using the SDK, Chartboost will keep the install loop open for a period of 21 days. 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. This only affects CPI campaigns, not Cost Per Click (“CPC”). Fees for video ads will be on a Cost Per Completed View (“CPCV”) basis. If You are an advertiser, you must make a minimum bid as listed on the Chartboost dashboard. Fees for Chartboost’s Retargeting tool will be on a CPC basis.
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 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; and 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” 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; (c) any other information designated in writing by either party as “Confidential” or an equivalent designation; and (d) information disclosed under circumstances that a reasonable person should know such information is confidential/proprietary. 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; (ii) rightfully received by the receiving party from a third party; or (iii) required to be disclosed by law or by a governmental authority. Neither party will use the other party’s name and logo in any news release, public announcement, advertisement, or other form of publicity without the prior written consent of the other party (which includes email), except that either party may use the other party’s name and logo on such party’s website and in publicity that announces the parties are working together. 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 is reliable, accurate, complete, or otherwise free from defects. Accordingly, the Online Services is 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, 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. 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, 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. You represent and warrant that: (i) You have and will maintain throughout the Online Services Term all end user consents and all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to Online Services Ads or Online Services Data to permit Chartboost to perform the Services contemplated under this Agreement (including without limitation any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of Online Services Ads or Online Services Data); (ii) You will not advertise anything illegal or engage in any illegal or fraudulent business practice; (iii) all of the information provided by You to Chartboost to enroll in the Online Services is correct and current; (iv) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (v) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in Your performance of any acts hereunder. 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 terms of this Agreement or (c) your violation of any applicable laws, rules or regulations.
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. 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 shall be executed 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.