Last updated September 2, 2020
By submitting any Order Form, clicking your acceptance to the TOU or Agreement, or by using the Services or the Codes you signify that you have read and agree to be bound by the terms and conditions of the Agreement and that you have the full authority to enter into and bind the Customer to the Agreement.
AppsFlyer may modify the Agreement from time to time as described herein. Your continued use of the Services following such modifications shall constitute your consent to the modified Agreement.
You may not use or access the Services if you are a direct competitor of AppsFlyer unless explicitly agreed by AppsFlyer in writing. Furthermore, you may not use or access the Services for benchmarking or any other competitive purpose.
If you do not agree to all of the terms of the Agreement then you may not use the Services.
Capitalized terms not otherwise defined in the Agreement shall have the meaning specified in this Section 1.
- “Affiliate” shall mean an entity that, directly or indirectly, controls, is controlled by, or is under common control with a party to this Agreement, where control means the power to direct the affairs or management of such entity, whether through the ownership of at least 51% (fifty-one percent) of the voting securities, by contract, as trustee or executor.
- “AppsFlyer” means the entity as set forth in Section 16.
- “Anonymous Aggregated Data” means data that is derived from the combination of End User Data with other data so that its results are aggregated and anonymized in such a manner that it is not identifiable in any way to any person or entity (including Customer).
- “Collection Technologies” means such Codes or similar data collection technologies that are used to collect End User Data by AppsFlyer.
- “Customer Data” means the End User Data and Registration Information.
- “Documentation” means implementation manuals and other policies and instructions relating to the use and operation of the Code and Services made available by AppsFlyer.
- “End User(s)” means such end users who have interacted with, or viewed, your advertising and marketing materials, or who use or have used your Applications, websites, products and/or services.
- “Order Form” means any insertion order, order form or similar document (whether provided through an online form or offline format) specifying the Subscription Package and/or the applicable subscription terms, including ordered Services, subscription period, fees, purchased features and quantity limits.
- “Restricted Data” means: (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 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 provided; (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); and (vii) any personally identifiable information other than End User Data that is afforded protection under specific regulation or laws.
- “Report” means the various attribution and analysis reports of End User Data generated through the Service.
- “Service(s)” means the services provided by AppsFlyer, including through its platform available on www.appsflyer.com or any other Website operated by AppsFlyer.
- “Subscription Package” means the specific Services to which you have subscribed and their corresponding fees and package features, including without limitation, support terms and quantity limits provided by AppsFlyer for the specified subscription package term, all as further described in an Order Form.
- “Customer“, “you”, and “your” means the entity specified in the Order Form that is procuring the Services.
Order Form and Account Registration
- AppsFlyer shall provide Services to you as set forth in an Order Form. An Order Form shall become effective only upon its execution by an authorized signatory of both parties.
- In order to access and use the Services, you may need to register an account. Any information provided during such registration must be current, complete and accurate (“Registration Information“). You must ensure Registration Information is up to date at all times. You will at all times be responsible for maintaining the security of your account credentials and shall take all necessary steps to protect your account credentials from disclosure. You agree to notify AppsFlyer immediately upon learning of any unauthorized use of your account or any other breach of security of your account.
Access and Use Rights
- Subject to your payment of all due fees, AppsFlyer grants you a limited, non-transferable, non-exclusive, right to: (i) access and use the Services pursuant to the terms of this Agreement; and (ii) integrate the Codes into Customer (or where applicable, Agency Clients) websites, advertisements and such number of Customer’s mobile applications specified in an Order Form (“Applications“) in accordance with the Documentation and solely for Customer’s internal business needs.
- You agree that you will not, nor will you allow any third party to: (i) reverse engineer or otherwise attempt to discover the underlying code of the Services; (ii) copy, modify, adapt, translate or otherwise create derivative works of the Codes or Services; (iii) rent, lease, sell, assign, or otherwise transfer rights in the Codes or Services to any third party; (iv) remove any proprietary notices or bypass any security measures of AppsFlyer with respect to the Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material that violates third party privacy rights; (vii) send material containing software viruses, worms, trojan horses, or other harmful computer code, files, scripts, agents, or programs; (viii) (f) use the Services or any part thereof in any manner that violates any applicable laws regarding unsolicited commercial communications, including without limitation, the CAN-SPAM Act, 2003; or (ix) use the Services in a manner that is not compliant with all applicable laws, rules or regulations and within the scope of the limited rights granted hereunder.
- Either party (a “Disclosing Party“) may disclose to the other party (a “Receiving Party“) certain confidential information regarding its technology and business (“Confidential Information“). AppsFlyer’s Confidential Information includes, without limitation, the pricing of this Agreement. Subject to the terms and conditions of this Agreement, the Receiving Party agrees to keep confidential and not disclose or use any Confidential Information except to support its use or provision of the Services. Confidential Information shall not include information that Receiving Party can show: (a) was already lawfully known to, or independently developed by, Receiving Party without access to or use of Confidential Information; (b) was received by Receiving Party from any third party without restrictions; (c) is publicly and generally available, free of confidentiality restrictions; or (d) is required to be disclosed by law, regulation or is requested in the context of a law enforcement investigation, provided that Receiving Party provides Disclosing Party with prompt notice of such requirement and cooperates in order to minimize such requirement. Receiving Party shall restrict disclosure of Confidential Information to those of its Affiliates, employees, agents, consultants and subcontractors who have a reasonable need to know such information and who are bound by written confidentiality obligations no less restrictive than those set out herein. Customers will not disclose any information regarding the results of any testing or evaluation of the Services to any third party without AppsFlyer’s prior written consent. The non-disclosure and non-use obligations set forth in this Section 4 shall survive the termination or expiration of this Agreement for a period of 5 (five) years.
Data and Privacy
- AppsFlyer strictly prohibits you from using the Services to collect or otherwise enable the collection of any Restricted Data. You hereby warrant that you shall not configure the Codes or Services to collect any Restricted Data through the Services. Additionally, you agree that when it is known to you or when you should reasonably be aware that End User Data may be collected from Children, you shall configure the Codes and Services appropriately to ensure compliance with applicable children data protection and privacy laws (including the Children’s Online Privacy Protection Act) – for example, by implementing an opt out from data collection when parental consent required by law is not obtained by you.
- If any End User Data collected through your use of the Service is deemed Personal Data as defined in the AppsFlyer Data Processing Addendum (“DPA”), then the terms and conditions set forth in the DPA shall apply to the use and processing of such Personal Data and shall be incorporated by reference into, and made an integral part of, this Agreement.
- To the extent any Customer Data is deemed Personal Information (as such term is defined under the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. (the “CCPA”)) and is subject to the CCPA, the parties agree that: (i) AppsFlyer shall be deemed a “Service Provider” and shall not be deemed “Selling”, both as terms are defined under the CCPA; (ii) AppsFlyer shall only use and process Personal Information obtained from your use of the Services (“Customer PI”) on your behalf and solely pursuant to the terms set forth in this Agreement; (iii) AppsFlyer shall not retain, use, or disclose Customer PI for any purpose other than for the specific purpose of performing the Services or as otherwise expressly permitted under the Agreement; (iii) AppsFlyer shall not sell, rent, disclose, release, transfer, make available or otherwise communicate, Customer PI to a third party in exchange for any monetary or other valuable consideration, except as required to provide the Services or as otherwise expressly permitted under the Agreement; (iv) AppsFlyer shall assist you to fulfill your obligations under the CCPA and to respond to requests from data subjects exercising their rights under the CCPA (e.g. deletion, access), all in accordance with the CCPA requirements; and (v) AppsFlyer certifies that it understands the foregoing restrictions.
- You shall be required to pay AppsFlyer all Subscription Package fees set forth in an Order Form. Unless different payment terms are specified in an Order Form, any amounts due shall be payable within 10 (ten) days of AppsFlyer’s issuance of the applicable invoice. Any Subscription Package fees unpaid by you by the due date shall thereafter bear interest at the rate of twelve percent (12%) per annum (or the maximum amount permitted by applicable law, whichever is less), during the period between the date the payment first becomes due and the date such amount is actually paid. Without derogating from any other remedies available to AppsFlyer under this Agreement or by law, if you have any outstanding debts in connection with any Services provided by AppsFlyer under any current or past Order Form, then, without affecting any of your payment obligations under the Agreement (including, any payment obligations under an Order Form) and without limiting any other rights that may be available to AppsFlyer under the Agreement, AppsFlyer shall have the right to suspend or cease performance of the Services until such debt is paid. All amounts owed to AppsFlyer are non-cancellable and fees paid are non-refundable, except as explicitly otherwise stated in the Agreement.
- AppsFlyer may use various billing service providers. When using such a provider's services, you agree to be subject to, and to comply with, the terms and policies of such provider. AppsFlyer shall not be liable and/or responsible for any acts or omissions of such billing providers.
- All fees payable hereunder, do not include any local, state, or federal sales, use, excise, personal property, VAT or other similar taxes or duties, including, without limitation, any withholding tax, and any such taxes, to the extent legally applicable, shall be borne and paid by you. For the avoidance of doubt, you shall not be responsible for any payment of taxes based on AppsFlyer’s net income.
- You agree to indemnify, hold harmless and defend AppsFlyer, at your expense, from any and all third-party claims, actions, proceedings, and suits brought against AppsFlyer or any of its officers, directors, employees, agents or Affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, court costs, reasonable attorneys’ fees and other litigation expenses) incurred by AppsFlyer or any of its officers, directors, employees, agents or Affiliates, arising out of, or relating to: (i) your breach of any terms of the Agreement; or (ii) your implementation and use of the Services in violation of applicable laws, rules or regulations.
- AppsFlyer agrees to indemnify, hold harmless and defend you, at its expense, from any and all third-party claims, actions, proceedings, and suits brought against you or any of your officers, directors, employees, agents or Affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, court costs, reasonable attorneys’ fees and other litigation expenses) incurred by you or any of your officers, directors, employees, agents or Affiliates, arising out of, or relating to, a claim that the Codes and/or Services infringe the intellectual property rights of a third party. Notwithstanding the foregoing, AppsFlyer shall have no responsibility or liability for any claim to the extent resulting from, or arising out of: (a) use of the Codes or Services not in compliance with the Agreement, the Documentation or applicable law; (b) the combination of the Codes or Services with any other code, platform or services not provided by, or explicitly approved in writing, by AppsFlyer; (c) the modification of any Codes or Services by any party other than AppsFlyer or in any way not expressly permitted by the Documentation; or (d) the use of any Code that is not the most up-to-date Code as made available to you by AppsFlyer.
- The obligations of either party to provide indemnification under this Agreement will be contingent upon the indemnified party: (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought (provided that the indemnified party’s failure to notify the indemnifying party will not diminish the indemnifying party’s obligations under this Section, except to the extent that the indemnifying party is materially prejudiced as a result of such failure); (ii) cooperating fully with the indemnifying party (at the indemnifying party’s expense); and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services. Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own selection at its own expense.
Agencies and Partners
- If you are an agency or a party representing, or providing services for the benefit of, a third party (“Agency Client“), you represent and warrant that you are authorized to act on behalf of, and bind to this Agreement, that Agency Client (and upon our request shall provide evidence thereof). You further represent and warrant that such Agency Client has provided you with explicit permission to collect on its behalf and view Customer Data and that you shall use such Customer Data strictly in accordance with the permissions provided to you by such Agency Client and the terms of this Agreement. You shall ensure that each Agency Client agrees to the terms of this Agreement and agrees to abide by its terms, including without limitation, Section 5 (Privacy). You acknowledge and agree that: (i) AppsFlyer makes no representations or warranties for the direct or indirect benefit of any Agency Client; and (ii) you will not make any representations or warranties to such Agency Client on behalf of AppsFlyer. You shall take all measures necessary to disclaim any and all representations or warranties that may pertain to AppsFlyer, the Services, or use thereof. You agree to indemnify, hold harmless and defend AppsFlyer, from and against any claims or actions and any related liability arising out of or relating to: (a) any representations and warranties made by you concerning any aspect of the Services to an Agency Client; (b) any claims made by or on behalf of any Agency Client pertaining directly or indirectly to your use of the Services; and (c) any claims with respect to acts or omissions of an Agency Client in connection with the Services.
- The Services enable you to measure and analyze your marketing campaigns with certain third parties that you work with, such as advertising networks, publishers and analytics providers (“Partners“). For such purpose, you may, through your configuration of the Services, direct AppsFlyer to share End User Data with, and receive data related to, End Users from Partners (“Shared Data“). Pursuant to the foregoing, you hereby grant AppsFlyer the right to share Shared Data with Partners and to obtain and process Shared Data from Partners. Customer acknowledges and agrees that: (i) the sharing of such Shared Data between AppsFlyer and Partners shall be enabled only to the extent supported by the Partner and AppsFlyer; (ii) any use of Shared Data by a Partner shall be subject to your own agreements with Partner; (iii) AppsFlyer shall have no liability or responsibility in connection with any actions or omissions by Partners; (iv) any use or processing of Shared Data may be subject to certain limitations and restrictions imposed by Partners including requirements by Partners to delete Shared Data they share with AppsFlyer after a certain period of time; and (v) that you will indemnify, hold harmless and defend AppsFlyer from and against any claims or actions or any related liabilities arising from your instructions to share Shared Data with a Partner. For the purpose of the Agreement (including the obligations under Section 5 hereunder) the term “End User Data” shall include Shared Data.
Warranties and Disclaimer of Warranties
- Each party represents and warrants that: (a) it is duly organized under applicable law and has sufficient authority to enter into this Agreement; (b) the person entering into this Agreement is authorized to sign this Agreement on behalf of such party; (c) the execution and performance under this Agreement does not conflict with any contractual obligations such party has to any third party; and (d) its services, materials and products do not, to the best of its knowledge, infringe the intellectual property rights of any third party. In addition, the Customer represents and warrants that it owns, or has all appropriate rights and/or licenses to, the Applications.
- EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, THE SERVICES, DOCUMENTATION, CODES AND REPORTS ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY APPSFLYER, EITHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. APPSFLYER DOES NOT WARRANT THAT THE SERVICES, DOCUMENTATION, CODES AND/OR REPORTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
- APPSFLYER WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR FOR ANY LOST PROFITS OR LOSS OF REVENUE, 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 APPSFLYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, APPSFLYER’S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF, OR RELATING TO, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICE IN THE 12 (TWELVE) MONTHS PRECEDING THE APPLICABLE CLAIM, IN THE AGGREGATE.
- SOME OF THE LIMITATIONS PROVIDED HEREIN MAY NOT BE ALLOWED UNDER THE LAWS OF CERTAIN JURISDICTIONS. IF ANY SUCH LAW IS DEEMED TO APPLY TO THE AGREEMENT THEN THE LIMITATIONS SET FORTH HEREIN SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER SUCH LAWS.
- As between the parties, AppsFlyer shall retain all right, title and interest in and to the Codes, Anonymous Aggregated Data and Services and all technology utilized by AppsFlyer to provide the Services, including any and all patents, copyrights, trademarks, trade names, trade secrets and other intellectual property rights relating to, embodied by, or incorporated in any of the foregoing (the “AppsFlyer Properties“) and including any updates, upgrades, enhancements, modifications or improvements made to, or derivatives of, the AppsFlyer Properties. If Customer provides AppsFlyer with any feedback regarding any AppsFlyer Properties, AppsFlyer may use all such feedback without restriction. Furthermore, AppsFlyer may use Anonymous Aggregated Data for research and analytics purposes and improvement and marketing of the Services. Nothing herein shall be interpreted to provide Customer any rights in the AppsFlyer Properties except the limited rights explicitly set forth herein.
Term and Termination
- The terms set forth in this TOU shall be in force for as long as an Order Form is in effect.
- At the end of the Subscription Package term specified in your Order Form, your Subscription Package under such Order Form will automatically renew pursuant to the same terms and conditions, unless otherwise explicitly stated in an Order Form or if either party provides the other with written notice 45 (forty-five) days prior to the end of the then applicable Subscription Package term. In the event any Order Form is executed by you for additional Services (an “Additional Order”) during any existing Subscription Package term or renewal Subscription Package Term, you agree that the Subscription Package term of such Additional Order shall be prorated to be in alignment with the existing Subscription Package term or renewal Subscription Package term so that the termination of all current and existing Subscription Package terms and all subsequent renewal Subscription Package terms shall coincide to take effect on the same date. Applicable fees shall be prorated in accordance with any pro-rated Subscription Package term or Renewal Subscription Package term. Notwithstanding the foregoing, except if otherwise specified in an Order Form: (i) the fees for each unit of pricing during any renewed Subscription Package term may be increased by up to 7% (seven percent) of the applicable fees in the immediately preceding Subscription Package term; and (ii) any free period provided during the expiring Subscription Package shall not apply to the renewed Subscription Package term.
- Each party may terminate the Agreement upon written notice if the other party is in material breach of the terms of the Agreement, and such breach is not cured within 30 (thirty) days from the receipt of written notice of such breach. Furthermore, AppsFlyer shall have a right to immediately suspend the Services in the event of: (i) non-payment; (ii) any breach by you of Sections 3-5 of these TOU; or (iii) if required to avoid harm to AppsFlyer or any third party.
- Upon any termination or expiration of the Agreement, AppsFlyer will cease providing the Services to you, and you will delete all copies of the Codes from all webpages, advertisements and Applications under your control or your account. In the event of any termination: (a) you will not be entitled to any refund of any fees for Services not yet rendered through the date of termination (except where explicitly stated otherwise in an Order Form); and (b) any: (i) outstanding balance through the date of termination; and (ii) other unpaid payment obligations will be immediately due and payable in full. Any obligations of the parties that by their nature are intended to survive the termination or expiration of the Agreement, including the obligations of the parties in Sections 1, 4-7, 8(a), 9-11, 12(d), 14(b) and (c) and 15 of this TOU, shall survive any termination or expiration thereof.
Modification to These Terms of Service
- AppsFlyer reserves the right to modify the terms of this TOU from time to time; provided that any such revised terms will only apply to an existing Subscription Package upon the earlier of: (i) the next renewal of such Subscription Package; or (ii) 30 (thirty) days from the date the notice of such change was posted on this page (or the AppsFlyer website) or otherwise provided to you.
- Technical support may be provided to customers depending on the Subscription Package as defined in an Order Form. If the Order Form specifies Technical Support, Customer Support Management (“CSM“) or similar in general terms, it shall mean that AppsFlyer will provide up to 5 hours of support per month under the Agreement, but does not guarantee that all problems will be solved or that any item will be error-free. Additionally, all such support shall be provided only during AppsFlyer’s business hours or such other availability hours specified in an Order Form.
- AppsFlyer may, from time to time, publish and make available to you certain updates to the Code. You agree to implement any such updates. AppsFlyer shall have no liability for any damages that may result from your failure to implement such updates.
- You authorize AppsFlyer to use your company name, logo or other applicable trademarks, at any time, for the purpose of referencing you as a customer on the AppsFlyer Website or in other promotional marketing materials.
Miscellaneous, Applicable Law and Venue.
- AppsFlyer shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.
- If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
- This Agreement shall be governed by and construed under the laws of the State of New York without reference to its conflict of law principles. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in New York, New York.
- Any notices to AppsFlyer must be sent to: AppsFlyer Legal Dept. 14 Maskit St. Herzliya, Israel, via first class or air mail or overnight courier, and are deemed given upon receipt. The failure of AppsFlyer to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
- You may not assign or otherwise transfer any of your rights hereunder without AppsFlyer’s prior written consent, and any such attempt is void. AppsFlyer may freely assign its rights under this Agreement. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
- The AppsFlyer entity with which you are contracting under this Agreement or any Order Form depends on where you are domiciled. Unless otherwise indicated in an Order Form: (i) if you are domiciled in the United States or Canada then you are contracting with AppsFlyer Inc., located at 100 First St. San Francisco, CA, 94105; (ii) if you are domiciled in the United Kingdom then you are contracting with AppsFlyer UK LTD, located at 87-91 Newman St., London, W1T 3EY, United Kingdom; and (iii) if you are domiciled in any country other than the United States, Canada or the United Kingdom then you are contracting with AppsFlyer Ltd., Located at 14 Maskit St. Herzliya, Israel. It is further clarified that any Affiliate of AppsFlyer may provide certain services to support the provision of Services under this Agreement, including billing and payment collection services.