AppsFlyer provides attribution and marketing analytics services (“AF Services“) that enable its customers to, among other things, effectively analyze and optimize their marketing campaigns, including by attributing installations and other conversion events to a specific marketing campaign.
Partner, the entity accepting this AppsFlyer Integrated Partner Agreement (the “Agreement“), operates a certain ad network or third party property or other platform (“Partner Services“) that Joint Customers wish to receive information from and/or send information to relating to their marketing campaigns to enable attribution and further analysis and optimization of their marketing campaigns (“Shared Data“).
This Agreement sets forth the terms under which AppsFlyer and Partner shall cooperate to develop, maintain, market and support an Integration between the AF Services and Partner Services to enable the sharing of Shared Data for the purpose of further measuring and optimizing Joint Customer’s marketing campaigns.
Please read this Agreement carefully. By clicking “Next”, or otherwise clicking your acceptance to this Agreement, you signify that you have read, and agree to be bound by, the terms and conditions of this Agreement and that you have the full authority to enter into and bind Partner to the Agreement. AppsFlyer may modify this Agreement from time to time as described herein. Your continued Integration with the AF Services following such modifications shall constitute your consent to the modified Agreement.
Any capitalized terms not otherwise defined under Section 1 below shall be defined in the body of the Agreement.
- “Account” shall mean an account providing Partner with access to the AF Services through a website made available by AppsFlyer.
- “Developer Tools” shall mean such APIs or other tools, codes or materials, including any Documentation, provided by one party to the other for development and support of an Integration.
- “Documentation” shall mean such materials, content or documentation provided by one party to the other, from time to time, in order to provide technical or other information relating to such party’s services and/or the Integration.
- “Integration” shall mean an integration of AF Services and Partner Services, using one or more Developer Tools (as mutually agreed between the parties) for the purposes of enabling the sharing of Shared Data.
- “Joint Customer” shall mean a customer that uses the AF Services, uses the Partner Services and requested use of the Integration.
- “Partner Portal” shall mean a portal accessible from an Account to enable Partner to view certain reporting and analytics services related to the Integration and Shared Data.
- Developer Tools.
In order to develop, maintain and support the Integration, each party shall provide the other with access to its relevant Developer Tools and reasonable support. Each party grants the other a non-exclusive, non-sublicensable, non-transferable, royalty-free and limited license to install and use the Developer Tools of such party for internal business operations purposes in order to create and test Integrations or for such other purpose as explicitly specified in such party’s Documentation. Neither party shall modify, adapt, translate, create any derivative works of, reverse engineer, reverse assemble, decompile or otherwise derive or attempt to derive the source code from any of the Developer Tools, or any part thereof, of the other party.
- Acceptance Testing.
Integrations may not be launched or used publicly prior to such Integration undergoing acceptance testing by AppsFlyer. Partner shall cooperate with AppsFlyer in connection with such acceptance testing and shall correct any deficiencies raised by AppsFlyer prior to the public availability of the Integration. Without derogating from the foregoing, AppsFlyer may periodically test Integrations to ensure their functionality and where it has become aware that an Integration is not operating properly, it may suspend the availability of such Integration until corrected by Partner.
- AppsFlyer Account.
In connection with the Integration, Partner may be provided with an Account and access to the Partner Portal. AppsFlyer grants Partner a non-exclusive, non-transferable, royalty-free and limited right to access and use the Partner Portal solely for the purposes of supporting the Integrations. Use of such Account by Partner is non-transferable. Partner may need to provide information during registration of such Account, which must be current, complete and accurate. Partner will, at all times, be responsible for maintaining the security of its Account login credentials and shall take all necessary steps to protect the Account login credentials from disclosure. Partner agrees to notify AppsFlyer immediately upon learning of any unauthorized use of, or access to, its Account or any other breach of security of its Account. Partner is restricted from using the Partner Portal for any purpose other than as described in this Agreement or the Documentation.
- Marketing cooperation.
The parties shall work together in good faith and in a timely manner to develop, market and support the Integration and their relationship.
- Shared Data.
It is agreed by the parties that it is not intended that either party provide the other with any Shared Data that is Regulated Data. “Regulated Data” shall mean: (i) name and contact details (e.g. address, phone numbers); (ii) financial information (e.g. bank account numbers, credit/debit card information, or any information regulated under the Gramm–Leach–Bliley Act ); (iii) any health or medical information (including information regulated under the Health Insurance Portability and Accountability Act); (iv) government IDs (e.g. driver’s license, passport, national ID, social security, TIN or EIN numbers), (v) any information regarding children (i.e. under the age of 16 (sixteen) or as otherwise defined by applicable children protection laws (“Children“)), including the Children’s Online Privacy Protect Act) including any End User Data related to Children, unless appropriate parental consent has been obtained by Company; (vi) any information defined as ‘Special Categories of Data’ under Article 9 of the GDPR (e.g. biometric or genetic data, information about ones religious beliefs, race, sex life or orientation); or (vii) any personally identifiable information other than End User Data that is afforded protection under specific regulation or laws. Notwithstanding the foregoing, Partner acknowledges and agrees that: (i) AppsFlyer only acts as a conduit to transfer and receive Shared Data from and to Partners, as requested and directed by Joint Customers; (ii) as between AppsFlyer and the Joint Customer, such Shared Data is owned and controlled by Joint Customers; and (iii) AppsFlyer does not monitor in any way the Shared Data that Joint Customers choose to share with Partner. In no event shall AppsFlyer be responsible for any Shared Data shared with Partner by a Joint Customer. Partner agrees to use the Shared Data solely on behalf of, and for the purposes of providing the Partner Services to, the specific Joint Customer to which such Shared Data relates (i.e. in the capacity of a Service Provider as such term is defined in the CCPA and as a Data Processor as such terms defined under the GDPR), unless expressly agreed otherwise between Partner and the Joint Customer. To the extent applicable, Partner represents and warrants that the Shared Data provided by Partner: (a) does not infringe the intellectual property rights of any third party; (b) does not contain any defamatory, libelous, obscene or otherwise offensive material; and (c) does not contain any worms, viruses, spyware, adware or other malicious or intrusive software.
Each party agrees to comply with any data protection and privacy laws that may be applicable to their use and processing of Shared Data, including, to the extent necessary, by posting an appropriate privacy notice and policy describing such party’s privacy practices. AppsFlyer shall only share Shared Data upon being directed to do so by a Joint Customer. Partner shall be responsible for obtaining, where necessary (e.g. by law or agreement), any consent from Joint Customer and/or Joint Customer’s end users to share Shared Data with AppsFlyer.
Without derogating from the generality of the foregoing, to the extent applicable, each party shall comply with their respective obligations under the European Union General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR“), including by: (i) imposing appropriate confidentiality obligations on such personnel authorized to access Shared Data; and (ii) implementing appropriate technical and organizational measures to protect Shared Data which it processes against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure, access, or processing. Furthermore, if due to the circumstances, a party that is required, by law, to provide information to a regulatory authority or to an individual, cannot do so without the assistance of the other party, then such other party shall provide the requesting party reasonable assistance. at the requesting party’s expense. The parties acknowledge that, if and to the extent the GDPR is applicable, AppsFlyer is deemed a Processor (as defined under the GDPR) of Shared Data on behalf of the Joint Customer.
In no event will either party be liable for any acts or omissions of the other party related to their use and processing of such Shared Data and each party shall indemnify and hold harmless the other party (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees) which such party may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party arising from such other party’s acts or omissions relating to its use, processing and/or provision of the Shared Data.
- Ownership and Intellectual Property.
AppsFlyer grants Partner the right to display AppsFlyer’s logo, brand name, trademark, service marks or other distinguishing marks of AppsFlyer (“AppsFlyer Marks“) as provided by AppsFlyer to Partner and to name itself as an authorized partner of AppsFlyer. Partner grants AppsFlyer the right to display Partner’s logo, brand name, trademark, service marks or other distinguishing marks of Partner (“Partner Marks“) as provided by Partner to AppsFlyer and to name Partner as a partner of AppsFlyer.
AppsFlyer shall retain all right, title and interest in and to the AF Services, AppsFlyer’s Developer Tools, Partner Portal, AppsFlyer Marks, and all intellectual property rights therein or related thereto, including, any improvement, modifications, enhancements, customizations, upgrades, updates to, or derivatives of, the foregoing. Partner shall retain all right, title and interest in and to the Partner Services, Partner’s Developer Tools, the Partner Marks, and all intellectual property rights therein or related thereto, including, any improvement, modifications, enhancements, customizations, upgrades, updates to, or derivatives of the foregoing. Except for the limited licenses expressly granted hereunder, nothing herein shall be construed as a grant of any right or license to, or transfer of ownership of, the other party’s respective property or intellectual property.
Except as expressly set forth herein or as permitted in this Agreement or the Documentation neither party shall: (i) modify, adapt, creative derivative works of, redistribute, or translate any portion of the other party’s services (including, in AppsFlyer’s case, the Partner Portal) or the Integration; (ii) reverse engineer, decompile, disassemble, or otherwise discover or attempt to discover the source code of, any portion of the other party’s services (including, in AppsFlyer’s case, the Partner Portal) or the Integration; (iii) distribute, rent, lease, offer, sell, resale, sublicense, assign or transfer all, or any component parts of, the Developer Tools, the other party’s services (including in AppsFlyer’s case the Partner Portal) or the Integration. Furthermore, Partner shall not and shall not permit any third party to: (a) modify or otherwise manipulate any AppsFlyer links inserted into advertisements in a manner that disrupts the ability to perform attribution; or (b) use the Shared Data, Developer Tools, Confidential Information and/or Integration to build or offer a product or service that is similar to, or competitive with, the AF Services or for any other competitive purpose.
- Term and Termination.
This Agreement will enter into effect on the Effective Date and will continue until it has been duly terminated in accordance with the terms hereof (the “Term“). Either party may terminate this Agreement at any time by providing 30 days advanced written notice to the other party, without any entitlement or obligation to any compensation. Upon a breach of any provision hereof by a party, the other party may terminate this Agreement if such breach remains uncured for a period of 10 days from notice of such breach or with immediate effect if such breach is deemed by the non-breaching party as incurable. This Agreement may be terminated with no notice period by either party: (i) at any time that the other party is liquidated or otherwise ceases the conduct of business in the ordinary course; or (ii) if the other party seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, or if any such proceeding is instituted against the other.
Upon termination of this Agreement, each party shall: (i) cease all display, advertising, and use of the other party’s marks and will not thereafter use, advertise, or display any such names, trademarks, logos, or designations; and (ii) promptly return to the other party, all tangible property representing such party’s Confidential Information and erase/delete any such Confidential Information held by it in electronic form and upon request confirm such in writing (except Shared Data that has already been shared with the other party and which may be retained by such party in accordance with its own agreements with the Joint Customer). All licenses and rights granted under this Agreement shall terminate forthwith upon termination or expiration of this Agreement. Notwithstanding any termination of this Agreement, any terms which by their nature should survive termination of the Agreement shall survive and continue to be in effect in accordance with their terms.
Each party acknowledges that, from time to time, it may be exposed to certain Confidential Information concerning the other party. Each party agrees that it: (i) will take appropriate steps to protect such Confidential Information from unauthorized disclosure with at least the same protective measures as it uses to protect its own Confidential Information, using at least a reasonable degree of care; (ii) will not disclose such Confidential Information to any third party; and (iii) will not use any Confidential Information (other than as authorized by this Agreement) without the prior written consent of the other party. Each party’s obligations with respect to Confidential Information shall continue during and after the Term of this Agreement until the earlier of 5 years or until such information becomes subject to one of the Exceptions, other than by breach of this Agreement. Notwithstanding the foregoing, each party may disclose such Confidential Information to its employees, contractors, officers, directors and authorized representatives who have a need to know such information and acknowledges that it shall be solely responsible to ensure that all of its employees, contractors, officers, directors and authorized representatives abide by their duties of confidentiality and non-use as set forth herein. Each party shall be liable for all acts and omissions of each such person to which they disclose Confidential Information. The receiving party may disclose Confidential Information in accordance with a judicial or other governmental order, provided that the receiving party will cooperate with the disclosing party to minimize the extent of any such disclosure, including but not limited, to giving the disclosing party advanced written notice of the anticipated disclosure and an opportunity to seek confidential or protective treatment of the Confidential Information prior to such disclosure, or by obtaining written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation. If the receiving party breaches its obligations hereunder, the receiving party shall be entitled to seek equitable relief to protect its interests therein, including but not limited to, injunctive relief, in addition to any and all other rights and remedies available at law or equity. On disclosing party’s written request, the receiving party shall promptly return or destroy all Confidential Information, and copies thereof, in its possession.
“Confidential Information” means all technical, non-technical, financial, business and other information, in whatever form or medium, that is either indicated to be proprietary or confidential information of either AppsFlyer or the Partner, or which, by its nature, would be reasonably deemed confidential or proprietary of AppsFlyer or the Partner, regardless of marking or identifying it as confidential or proprietary, including, without limitation, the terms of, or any information derived from, this Agreement or the performance of services hereunder, any intellectual property rights, trade secrets, user lists and information, personally identifiable information, transaction volume, marketing and business plans, conversion data and volume of click-throughs and other related statistics. The term “Confidential Information” does not include any information or documentation that was: (a) already in the possession of the receiving party without an obligation of confidentiality; (b) developed independently by the receiving party, as demonstrated by the receiving party, without use of, or reference to, the disclosing party’s Confidential Information; (c) lawfully obtained from a source other than the disclosing party without an obligation of confidentiality; or (d) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by the receiving party); or (e) approved in writing to be disclosed by the disclosing party (the “Exceptions“).
Each party represents and warrants to the other that: (a) it has the full right, power, legal capacity and authority to enter into, deliver, and fully perform under, this Agreement; and (b) neither the execution, delivery nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such party is bound.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, MADE BY: (A) EITHER PARTY WITH RESPECT TO SUCH PARTY’S DEVELOPER TOOLS AND DOCUMENTATION; AND (B) APPSFLYER, IN CONNECTION WITH THE INTEGRATION, AF SERVICES OR PARTNER PORTAL, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, USEFULNESS, ACCURACY OR FITNESS FOR A PARTICULAR PURPOSE. EACH PARTY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE AMOUNT OF REVENUE OR ANY OTHER BENEFIT THAT THE OTHER PARTY MAY RECEIVE RESULTING FROM THIS AGREEMENT.
Each party (the “Indemnifying Party”) will indemnify, hold harmless and defend the other party, and its affiliates and their respective officers, directors, employees and agents (the “Indemnified Party”) against any and all third party claims, demands, losses, liabilities, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) arising out of or relating to: (i) a breach by the Indemnifying Party of any terms, warranties or representations contained in this Agreement; (ii) gross negligence or willful misconduct of the Indemnifying Party; (iii) any agreement with a Joint Customer regarding the Indemnifying Party’s service; or (iv) infringement by the Indemnifying Party of any third party intellectual property right; provided, however, that such indemnification obligation shall not arise to the extent that the third party claim arises out of: (a) use of the Indemnifying Party’s Developer Tools, products or services in combination with other software, data products, processes, or materials not provided by the Indemnifying Party (other than the Integration) and the infringement would not have occurred but for the combination; (b) where the alleged infringement arises from, or relates to, modifications to the Indemnifying Party’s Developer Tools, products or services not made or authorized by the Indemnifying Party or set forth under this Agreement, or modifications to the Indemnifying Party’s Developer Tools, products, services or materials developed pursuant to instructions provided by the Indemnified Party; or (c) to the extent the liability arises from the Indemnified Party’s continued use of the activity or use constituting or contributing to the infringement after notification thereof by the Indemnifying Party.
If a party is entitled to indemnification hereunder the Indemnified Party shall give the Indemnifying Party prompt written notice and provide the Indemnifying Party, at its option, control to defend against the claim. If the Indemnifying Party elects to defend the action, the Indemnifying Party will be obligated to defend the claim, at its own expense, and by counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party shall have the right to participate fully, at its own expense, in the defense of such claim. Any compromise or settlement of a claim shall require the prior written consent of both parties hereunder, such consent not to be unreasonably withheld or delayed.
- Limitation of liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, GOODWILL, OR OTHER ECONOMIC ADVANTAGE), ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS AGREEMENT WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, TORT, OR OTHERWISE, AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL NOT APPLY IN RESPECT OF THE PARTY’S INDEMNIFICATION OBLIGATIONS OR FOR BREACH OF CONFIDENTIALITY. IN ANY EVENT APPSFLYER’S TOTAL CUMULATIVE LIABILITY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF, OR RELATING TO, THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF: (I) THE AMOUNT PAID BY PARTNER TO APPSFLYER FOR THE PERIOD OF 6 MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM; OR (ii) US$10,000
Assignment. Neither party may assign this Agreement or any of its rights and/or obligations hereunder without first obtaining the non-assigning party’s written consent, provided however, that AppsFlyer may freely assign this Agreement and all rights and data or information related thereto to an affiliated company or in connection with a merger, acquisition, a sale of all or substantially all of AppsFlyer’s shares or assets, or similar reorganization.
Notices. All notices and demands hereunder shall be made in writing and shall be served by email, personal service or by mail at the address of the receiving party set forth in this Agreement (or at such different address as may be designated by such party by written notice to the other party). All notices or demands by mail shall be certified or registered mail, return receipt requested, or by nationally-recognized private express courier, and shall be deemed complete upon receipt.
Governing Law and Jurisdiction. This agreement shall be governed by and construed in accordance with the laws of New York, USA, without giving effect to its conflict of laws provisions. The competent courts in the city of New York, NY, USA shall have sole and exclusive jurisdiction and venue over any dispute related to this Agreement and both parties hereby consent to such jurisdiction and venue. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded by the Parties.
Relationship of the Parties. For the purposes of this Agreement, the parties will at all times be independent contractors, with no right to bind or obligate the other in any manner whatsoever. There is no relationship of agency, partnership, joint venture, employment or franchise between the parties. Except as expressly provided herein, neither party shall have the right to exercise any control whatsoever over the activities or operations of the other party and nothing in this Agreement shall prevent either party from entering into a similar relationship with any other third party, provided such relationship does not violate the terms and conditions of this Agreement.
No Waiver. Either party’s failure to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times.
Entire Agreement and Modifications. This Agreement and any of its attached exhibits and appendixes, constitute the entire agreement between the parties and supersedes any and all previous representations, understandings, or agreements between Partner and AppsFlyer as to the subject matter hereof. AppsFlyer reserves the right to modify the terms of this Agreement from time to time. Your continued integration with the AF Services, use of the Partner Platform or support of the Integration, including, by sharing Shared Data with AppsFlyer, shall be deemed your acceptance to any such modified terms. AppsFlyer shall provide notice to Partner of any material changes to this Agreement by posting a notice on this webpage and/or through the Partner Platform or any other reasonable method.