These AppsFlyer Solutions Partner Program Terms (the “Agreement“) set forth the terms under which you (“Partner”) may become a member of the AppsFlyer Solutions Partner Program (respectively, the “Membership” and “Partner Program”).
By applying to become a member in the Partner Program 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 Partner to the Agreement.
AppsFlyer may modify the Agreement from time to time as described herein. Your continued participation as a member in the Partner Program following such modifications shall constitute your consent to the modified Agreement.
If you do not agree to all of the terms of the Agreement then you may not participate in the AppsFlyer Solutions Partner Program
- Definitions: Capitalized terms not otherwise defined in the Agreement shall have the meaning specified in this Section 1:
- “AppsFlyer” means AppsFlyer Ltd.
- “AppsFlyer Services” the services made available by AppsFlyer, including, without limitation, its attribution and marketing analytics services.
- “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, 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, report(s) generated using the AppsFlyer Service, transaction volume, marketing and business plans, business, financial, technical and operational information, usage statistics, information in respect of rate, product and availability parity, pricing policies, conversion data and volume of click-throughs and other related statistics, processes, financial data, technical data and documentation, strategic planning, product/service specifications, prototypes, computer programs, databases, drawings, models, marketing data, training material, techniques, client information, algorithms and processes, or any modification or extraction thereof, that is furnished or disclosed by AppsFlyer or the Partner pursuant to the terms of this Agreement. The term “Confidential Information” does not include any information or documentation that was: (a) already in the possession of the receiving party from a Third Party without an obligation of confidentiality; (b) developed independently by the receiving party, as demonstrated by the receiving party, without a violating use or reference of 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) (the “Exceptions”).
- “Intellectual Property Rights” means any and all tangible and intangible rights associated with the AppsFlyer Service, including, without limitation, (a) any patents, designs, algorithms and other industrial property rights, patent applications, statutory inventions registrations, and divisions, continuations, continuation-in-part and substitute applications of the foregoing and any extensions, reissues, restorations and reexaminations of the foregoing; (b) all works of authorship throughout the universe, whether copyrightable or not, including mask work rights, software, databases, compilations, and all registered and unregistered copyrights; (c) all trade secrets; (d) trademarks, service marks, trade names, logos, and other indicia of origin; (e) domain names, URLs, websites, rights of personality, publicity, moral rights and other proprietary or similar rights; (f) all other intellectual and proprietary rights (of every kind and nature, whether now known or hereafter recognized, throughout the universe and however designated), whether arising by operation of law, contract, license, or otherwise; and (g) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in and to any of the foregoing).
- “Membership Level” means Partner’s Membership level in the Partner Program that is determined based on Partner meeting the specific level criteria and AppsFlyer’s discretion.
- Membership Level. In order to obtain Membership in the Partner Program, Partner shall be required to apply for Membership and provide current and complete information during the registration process. The Membership Level Partner shall be entitled to will be determined by the specific criteria that Partner meets and AppsFlyer’s discretion. AppsFlyer may accept or reject an application for Membership for any reason in its sole discretion. In order to maintain a Membership Level, Partner must continuously meet all specific Partner Program requirements specified by AppsFlyer under the specific Membership Level (“Program Requirements”) and comply with any specific ongoing commitments (“Ongoing Commitments”). Failure to do so may lead to termination of this Agreement and/or transfer to a lower Membership Level. In certain cases, Partner may be eligible, during the Term, for a higher membership level in which case AppsFlyer may notify Partner of such eligibility. Any change in Membership Level must be approved by AppsFlyer in writing.
- Partner Program. During the Term Partner shall be entitled to the Membership benefits provided under the applicable Membership Level.
- Certification. In the event Partner fulfils all Requirements including appropriate Training, and testing, Partner shall be entitled to receive certification as an authorized solutions partner of AppsFlyer (“Certification”) appropriate for its Membership Level.
- AppsFlyer Licenses. Subject to Partner obtaining and maintaining Certification:
- AppsFlyer grants Partner the right to display the AppsFlyer Certification mark (“AppsFlyer Mark”) as provided by AppsFlyer to Partner and to name itself as an authorized partner of AppsFlyer in accordance with the terms of its Membership Level. No other use of the AppsFlyer, name, logo, or any other trademark of AppsFlyer shall be permitted unless explicitly approved by AppsFlyer in writing, including, in any press release, promotional materials, or case studies.
- AppsFlyer grants Partner the right to use such materials, content or documentation provided by AppsFlyer from time to time in order to market the AppsFlyer Services and/or otherwise to provide technical or other information relating to the AppsFlyer Services (the “Documentation”) solely in connection with its Membership.
- Joint Efforts. The Parties shall work together in good faith and in a timely manner to discuss business opportunities advancing both Parties’ products and services whether separately or in combination, to coordinate efforts and to cooperate in any other way seems fit and agreed by the Parties (“Business Opportunity”). Each party will cooperate in good faith with the other by, among other things, making available, as reasonably requested by the other, management decisions, information, approvals, and acceptances in order that each party may properly benefit from any agreed Business Opportunity.
Partner hereby agrees to: (a) conduct its business in a manner that reflects favorably on the relationship between AppsFlyer and Partner; (b) refrain from any deceptive, misleading, or disparaging practices; and (c) ensure that all services provided by Partner under this Agreement comply with all applicable foreign, federal, state and local laws, rules, orders and regulations.
- Term and Termination. This Agreement will enter into effect on the Effective Date and will continue until it has been duly terminated (the “Term”). Either Party may terminate this Agreement at any time by a 30-day 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 shall seek protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, or if any such proceeding is instituted against the other.
- Consequences of Termination/Expiration of Agreement. Upon termination of this Agreement Partner shall: (i) cease all display, advertising, and use of all AppsFlyer Marks and will not thereafter use, advertise, or display any such names, trademarks, logos, or designations; (ii) promptly return to AppsFlyer, at Partner’s expense, all tangible property representing AppsFlyer’s Confidential Information; (iii) erase/delete any such Confidential Information held by it in electronic form and confirm such in writing. All licenses and rights granted to Partner under this Agreement shall terminate forthwith upon termination or expiration of this Agreement, except as may otherwise be specified in any Supplemental Terms.
- Confidentiality. 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 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 such information becomes subject to one of the Exceptions, other than by breach of this Agreement. Each Party will only disclose such Confidential Information to its employees who have a need to know such information and acknowledges that it shall be solely responsible to ensure that all of its employees and agents abide by their duties of confidentiality as set forth herein. Each Party shall be liable for all acts and omissions of each such person to which they disclose Confidential Information.
- Anti-Bribery. AppsFlyer is committed to doing business worldwide ethically, free from corruption without exceptions and in compliance with all applicable anti-corruption laws and expects its partners to comply with the same high standards. Neither Partner nor any of its personnel has or will improperly provide (or offer to provide), directly or indirectly, anything of value to anyone, including government officials to obtain or retain business, to obtain a commercial advantage, or to receive favored treatment, anywhere in the world and shall comply with all applicable anti-corruption laws. Partner shall immediately notify AppsFlyer in writing of any suspected or known breach of the obligations under this Section 10. Before execution of this Agreement and at any time during the engagement, AppsFlyer may carry out due diligence on Partner’s business to confirm compliance with the obligations set forth in this Section 10.
- Proprietary Information. All Intellectual Property Rights evidenced by, embodied in, and/or attached/ connected/related to the AppsFlyer Services, including, any enhancements, customizations or derivatives and AppsFlyer Marks are and shall be owned solely by AppsFlyer. Partner acknowledges that, except as expressly provided hereunder Partner has not, does not, and shall not acquire any rights with respect to the AppsFlyer Services. Partner further acknowledges that AppsFlyer has sole control over all content, programming and contracting terms of the AppsFlyer Services and owns all statistical data derived from the use of the AppsFlyer Services.
- Indemnification. Each party will hold harmless and defend the other party or any of its officers, directors, employees, agents or affiliates against any and all third party claims, demands, liabilities, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) arising out of or relating to (i) a breach such party of any terms, warranty or representation contained in this Agreement; or (ii) infringement by such party of any Intellectual Property Right. Additionally, Partner will hold harmless and defend AppsFlyer or any of its officers, directors, employees, agents or affiliates against any and all third party claims, demands, liabilities, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) arising out of or relating to any of its services, products or activities. If a Party is entitled to indemnification hereunder (the “Indemnified Party”) the Indemnified Party shall give the other Party (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.
- Mutual Warranties. 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.
- AppsFlyer Warranty EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY APPSFLYER, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE PARTNER PROGRAM, APPSFLYER SERVICES OR DOCUMENTATION, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, 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 PARTNER PROGRAM, APPSFLYER SERVICES OR DOCUMENTATIONWILL MEET YOUR NEEDS, BE ERROR FREE, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. EACH PARTY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING (i) THE AMOUNT OF REVENUE OR ANY OTHER BENEFIT THAT THE OTHER PARTY MAY RECEIVE RESULTING FROM THIS AGREEMENT.
- 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 US$5000.
- General Provisions.
- Assignment. Neither Party may assign any of its rights and/or obligations under this Agreement 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, a sale of AppsFlyer or all (or substantially all) of AppsFlyer’s assets, or similar reorganization.
- Notices. All notices and demands hereunder shall be in writing and shall be served by 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, without giving effect to its conflict of laws provisions. The courts of the city of New York, New York 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. 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. This Agreement may only be amended by an instrument in writing signed by the Parties. Without derogating from the foregoing, it is hereby clarified that nothing in this Agreement shall derogate from any rights or obligations of Partner or AppsFlyer under the agreement between the parties in relation to use of the AppsFlyer Services.
- Modification to Agreement. AppsFlyer reserves the right to modify the terms of this Agreement from time to time; provided that AppsFlyer shall provide you with notice of any such changes that are material. Any material changes will only apply 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.
- Survival. Notwithstanding any termination of this Agreement, as well as 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.