PARTY TRACK CUSTOMER AGREEMENT
This website (“Website”) and the services it contains are owned by Adways Inc.. (hereafter “Adways”). THIS IS AN AGREEMENT BETWEEN YOU (“YOU”, OR “CUSTOMER”) AND ADWAYS; PLEASE READ THESE TERMS CAREFULLY. By accessing or using this Website, the Adways SDK (as defined herein), or the Service (as defined herein), You agree to be bound by these terms as described herein (“Agreement”) and by all terms, policies, guidelines and disclosures incorporated by reference. If You do not agree to all of these terms, please do not use this Website. If a written agreement regarding your use of the Service and/or the Adways SDK exists between and has been executed by both Customer and Adways, the terms of that written agreement shall take precedence over this Agreement and Customer acknowledges that it is bound by the terms of that written agreement.
ADWAYS RESERVES THE RIGHT TO MAKE CHANGES TO THIS AGREEMENT AT ANY TIME WITHOUT NOTICE TO YOU. THE MOST CURRENT VERSION OF THE AGREEMENT CAN BE REVIEWED BY SELECTING THE APPROPRIATE LINK ON THE WEBSITE. IT IS YOUR RESPONSIBILITY AS A USER OF THIS WEBSITE TO PERIODICALLY RETURN TO THE WEBSITE TO REVIEW FOR AMENDMENTS. THE AMENDED TERMS SHALL TAKE EFFECT AUTOMATICALLY THE DAY THEY ARE POSTED ON THE WEBSITE. YOUR CONTINUED USE OF THIS WEBSITE AND THE SERVICE AND/OR ADWAYS SDK WILL CONSTITUTE YOUR AGREEMENT TO SUCH AMENDMENTS (OTHER THAN WITH RESPECT TO GOOD FAITH DISPUTES ARISING PRIOR TO THE AMENDMENT OR MODIFICATION).
To begin the enrollment process, you must submit a complete and accurate application (“Application Form”) via the Website. To enroll in the Service, you must be an entity. Adways will evaluate your Application Form and promptly notify you of its acceptance or rejection via the email address that you supply with your Application Form. If any of the information supplied as part of your Application Form changes, at any time, you must immediately inform Adways of such changes.
This Agreement shall be deemed effective, and you shall be considered enrolled in the Service as of the date that you click the “Submit” or “Agree” or other applicable button on the Website (the “Effective Date”), provided that Adways accepts your application. Should Adways reject your application, for any reason at all, you will not be enrolled in the Service and the Agreement shall not be deemed effective.
A. WHEREAS, Adways has developed and owns a proprietary advertisement tracking system for mobile applications (“Party Track”) that enables its customers to accurately track, monitor, and analyze advertising campaigns across multiple Networks (as defined herein) utilizing a single software development kit (the “Service”);
B. WHEREAS, Customer maintains and operates one or more Customer Applications and utilizes multiple Networks to promote the Customer Applications; and
C. WHEREAS, Customer desires to integrate the Adways SDK into its Customer Applications in order to access and use the Service, and Adways desires to provide Customer with access to and use of the Service and to allow Customer to integrate the Adways SDK into the Customer Applications.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1.1 “Account” means Customer’s account through which Customer can access and use the Service.
1.2 “Administrator Account” means the “master account” that has full control and access to Customer Data and Reporting Data and the ability to launch tracking campaigns. This account has the power to create additional User accounts and grant certain privileges, including limiting or expanding access of specific User accounts.
1.3 “Advertising Agency” has the meaning specified in Section 4.1.
1.4 “Adways IP Rights” has the meaning specified in Section 5.1.
1.5 “Adways SDK” means Adways’ software development kit specifically intended for incorporation into the Customer Application for the purpose of allowing the Customer Application to communicate with the Service.
1.6 “Adways Technology” has the meaning specified in Section 5.1.
1.7 “Application Form” means the process of enrolling in the Service through submission of certain online forms representing Customer’s consent to the terms and conditions governing Customer’s use of the Service, that are executed hereunder and deemed incorporated into this Agreement.
1.8 “Confidential Information” means and includes any information that: (i) is disclosed by one party to the other in written, graphic, machine-readable or other tangible form and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature, or, if orally disclosed or obtained by observation, is identified as confidential at the time of disclosure and confirmed in writing to have been confidential within thirty (30) days of disclosure or observation; (ii) a party should, in the exercise of reasonable judgment, know is confidential to the other party; or (iii) is specifically identified as Confidential Information in this Agreement.
1.9 “Customer Application” means the mobile application(s) listed in your Account profile and/or Application Form, which may include Customer’s mobile application(s) and any mobile application(s) owned or controlled by third parties for which Customer has obtained permission to incorporate the Adways SDK. Customer Applications may be updated from time to time to include additional applications mutually agreeable to Customer and Adways.
1.10 “Customer Data” means all electronic data or information submitted by Customer to the Service.
1.11 “Customer Account Balance” has the meaning specified in Section 4.2
1.12 “Network” means an advertising network that connects advertisers to websites and other platforms that host advertisements.
1.13 “Reporting Data” means analytic user and usage data, distinct from Customer Data, relating to third-party individuals’ “clicks” on advertisements and downloads of the Customer Application as part of Customer’s use of the Service.
1.14 “Service” has the meaning specified in Recital A hereof, as further described in the appendix titled “System Flow and Specifications” below.
1.15 “Users” means Customer’s employees, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by Adways at Customer’s request).
2.1 Provision of Service. Subject to the terms and conditions of this Agreement, Adways shall make the Service available to Customer upon Customer’s completion and submission of an Application Form, provided it is accepted by Adways. Customer may create as many User logins and passwords as reasonably needed, subject to Adways’ discretion, for Users to access the Service and Customer’s Account, provided, however, that Customer may create only three (3) Administrator Accounts. In Adways’ sole discretion, Customer may obtain additional Administrator Accounts, upon the payment of the then current cost of such additional accounts. Unless otherwise specified, (i) the term of the additional Administrator Accounts shall be coterminous with the expiration of the then current subscription term; and (ii) pricing for the additional Administrator Accounts shall be prorated for the remainder of the then current subscription term.
2.2 No Sharing of Logins or Passwords. Customer and its Users shall not share the user logins and passwords with, or otherwise allow access to the Service and the Account by, any other individuals other than the Users; provided that logins and passwords may be reassigned from time to time to new Users replacing former Users who have terminated employment or some other prior relationship with Customer, changed job status or function, or otherwise no longer require ongoing use of the Service. Customer shall provide to Adways all required information, which must be correct, current and complete, in order to create the Account. Customer is responsible for maintaining the confidentiality of the user logins and passwords Customer receives to access the Account, and Customer is fully responsible for all activities that occur under or otherwise in connection with the Account. Customer shall notify Adways immediately of any unauthorized use of Customer’s user logins and passwords.
2.3 Performance. During the term of this Agreement, Adways shall use commercially reasonable efforts to ensure that (i) the Service performs substantially in accordance with the Specifications as set forth in the appendix “System Flow and Specifications” below, and (ii) the functionality of the Service is not materially decreased from that available as of the Effective Date. Customer agrees that its purchase of subscriptions is not contingent upon the delivery of any future functionality or features nor is it dependent upon any oral or written public comments made by Adways with respect to future functionality or features. Customer, at its sole cost and expense, shall be solely responsible for (i) providing and maintaining all hardware, software, electrical and other physical requirements necessary for Customer’s use of the Service, including, without limitation, telecommunications and Internet access connections and links, web browsers, bandwidth, or other equipment, software and services required to access and use the Service, (ii) ensuring that all of the foregoing are compatible with the Service, and (iii) complying with all system requirements provided by Adways, including, without limitation, recommended Adways configuration procedures, if any, both soft and hard copies of which may be made available to Customer at Adways’ discretion. Customers who do not follow such procedures may experience service interruption or unforeseen service issues. Adways may modify the Service at any time if such modification does not negatively impact Customer in a material way with or without notice to Customer.
3. Use of the Service.
3.1 Adways Responsibilities. Adways shall: (i) in addition to its confidentiality obligations under Section 6, not use, edit or disclose to any party other than Customer the Customer Data; (ii) maintain the security and integrity of the Service and the Customer Data; and (iii) use commercially reasonable efforts to make the Service generally available 24 hours a day, 7 days a week, except for: (a) planned downtime, which Adways shall schedule to the extent reasonably practicable during non-business hours; or (b) downtime caused by emergencies or other circumstances beyond Adways’ reasonable control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems not involving Adways employees, computer or telecommunications failures or delays involving hardware or software not within Adways’ possession or reasonable control, and network intrusions or denial of service attacks.
3.2 Customer Responsibilities. Customer is responsible for all activities that occur under or otherwise in connection with Customer’s User accounts and Administrator Accounts. Customer shall: (i) have sole responsibility for the provision, accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Adways promptly of any such unauthorized use; and (iii) comply with all applicable any laws in using the Service. Customer acknowledges that Adways shall not be held responsible for interruptions in the Service caused by Customer’s failure to meet its responsibilities under this Agreement.
3.3 Use Guidelines. Customer may use the Service and the Adways SDK solely for its internal business purposes as contemplated by this Agreement. Customer agrees that Customer will not, nor will Customer allow or facilitate a third party to, directly or indirectly (i) reproduce, modify, or create derivative works of the Service, the Adways SDK, or Adways Technology, (ii) modify, alter or delete any of the copyright, trademark, or other proprietary notices displayed on, embedded in, or affixed to the Service, the Adways Technology, or the Adways SDK, (iii) use any device, software or routine to interfere with the proper working of the Service or the Adways SDK, (iv) unless otherwise approved by Adways in writing, use any automated means, including, without limitation, agents, robots, scripts or spiders, to access, monitor, or copy the Service, the Adways SDK, or the Adways Technology, or (v) use the Service, the Adways SDK, or the Adways Technology in any manner other than as permitted by this Agreement. Without limiting the foregoing, Customer further agrees that it will not take any action that imposes an unreasonable or disproportionately large load on Service, as determined by Adways.
3.4 Third-Party Providers. To the extent third-party providers offer products and services related to the Service (“Third-Party Services”), Adways does not warrant any such Third-Party Services, whether or not such products or services are designated by Adways as “certified,” “validated” or otherwise. Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any product or service offered by such third-party provider, is solely between Customer and such third-party provider. Third-Party Services includes, but is not limited to, use of other advertisement tracking services, Network services, or the implementation, customization and other consulting services related to customers’ use of the Service or any data produced through the Service.
3.6 Press Releases. Neither party will refer in any manner to the other party in any promotional or advertising materials, media releases, public announcements, and public disclosures relating to this Agreement or its subject matter, without the prior written consent of the other party. Notwithstanding the forgoing, the parties agree to publicity activities listed in the appendix titled “Marketing Activities” below.
4. Fees & Payment.
4.1 User Fees. Customer shall pay all fees specified hereunder and as stated in the Application Form. Except as otherwise provided, fees are non-refundable, and all fees are quoted in United States dollars and all payments made under this Agreement shall be in United States dollars. Customer must have a valid PayPal® account, or other payment processing account as Adways may deem appropriate from time to time in order to make payments due hereunder. Customer hereby consents to and authorizes Adways’ investigation into the credit worthiness of Customer. Such consent and authorization is given with respect to any and all persons who may conduct an investigation of Customer’s credit worthiness on behalf of Adways, including independent contractors and credit agencies retained by Adways for such purpose. Customer agrees that it will not receive interest or other earnings on any funds that Adways handles on Customer’s behalf, including Customer Account Balance. In consideration for Customer’s use of the Service, Customer hereby irrevocably transfers and assigns to Adways any ownership right that it may have in any interest that may accrue on Customer Account Balance or other funds held by Adways.
4.2 Invoicing & Payment. Unless otherwise agreed upon by the parties in writing, fees for the Service shall be paid for and deposited in advance into the Customer’s Account (“Customer Account Balance”) and otherwise in accordance with the terms set forth herein. Fees will be based on a “pay-per-event” model, meaning Customer will be charged (deducting from the Customer Account Balance) Adways’ then current fee for each time a Client Application is installed by an end-user and/or a “event” on Customer’s action is tracked by the Service. In Adways’ sole discretion, and if Customer elects to do so, Adways may invoice Customer on a monthly basis for all fees accumulated by Customer as part of its use of the Service. As part of Adways’ provision of the Service, Customer authorizes Adways to charge its designated payment account for any applicable fees owed by Customer or to deposit additional Customer Account Balance as needed. Adways reserves the right to apply an alternative fee-schedule for Customers that are Advertising Agencies. “Advertising Agency” means any person or business engaged in creating, planning, or handling advertising for clients.
4.3 Overdue Payments. Customer shall pay all invoices within 30-days of the issuance of such invoice. Any payment not received from Customer by the due date will accrue late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.4 Suspension of Service. If the Customer Account Balance reaches a zero balance, or Customer’s account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Adways reserves the right to suspend the Service provided to Customer, without liability to Adways, until additional deposits are made into the Customer Account Balance or such overdue amounts are paid in full.
4.5 Taxes. Unless otherwise stated, Adways’ fees do not include any taxes, levies or duties of any nature (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Adways’ income. If Adways has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and promptly paid by Customer unless Customer provides Adways with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.6 Billing and Contact Information. Customer shall maintain complete and accurate billing and contact information on the Service at all times.
5. Proprietary Rights.
5.1 Reservation of Rights. Customer agrees and acknowledges that: (i) in providing the Service, Adways utilizes (a) Adways’ trademark(s) and/or logo(s), the Service domain name(s), the product and service names associated with the Service, and other trademarks and service marks, (b) certain audio and visual information, documents, software and other works of authorship, and (c) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, “Adways Technology”); and (ii) Adways owns all right, title and interest, including all intellectual property rights, in and to the Adways Technology, except for any components of the Adways Technology that are owned by third parties and licensed to Adways (collectively, “Adways IP Rights”). Other than as expressly set forth in this Agreement, no license or other rights in or to the Adways Technology or Adways IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
5.2 License Grants. Subject to the terms and conditions of this Agreement, Adways hereby grants to Customer a worldwide, limited, non-assignable (except in connection with a permitted assignment of this Agreement), non-exclusive, non-sublicenseable license to: (i) access and use the Service; and (ii) incorporate the Adways SDK into the Customer Application solely for use with the Service and to distribute the Adways SDK as part of the Customer Application pursuant to Section 5.7. All rights except those expressly granted to Customer in this Agreement are reserved to Adways and any use of the Adways SDK which is not expressly permitted in this Agreement is prohibited.
5.3 Restrictions. Customer shall not (i) create Internet “links” to or from the Service, or “frame” or “mirror” any content forming part of the Service, other than on Customer’s own intranets or otherwise for its own internal business purposes; or (ii) disassemble, reverse engineer, or decompile the Service or Adways Technology, or access it in order to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service.
5.4 Customer Data. Customer owns all Customer Data. Customer shall provide Adways with certain “app store” developer account information, or other information as Adways may deem appropriate from time to time in order to provide the Service. Customer Data shall be considered Confidential Information subject to the terms of this Agreement. Adways may access Customer’s User accounts, including Customer Data, to respond to service or technical problems or as otherwise required to provide and maintain the Service.
5.5 Reporting Data. Adways owns all right, title and interest in and to the Reporting Data. Adways may use the Reporting Data to generate non-personally-identifiable analytics showing information and data on tracked advertisements, Customer Application downloads, and other pertinent interaction related to the Service (e.g. general geographic locations of persons who click on the advertisements, or which Networks or social media websites produce the most clicks). As part of the Service, Customer will have access to the Reporting Data analytics via the reporting interface of the Service. Adways may restrict access to Reporting Data analytics related to the optimization of the Service in Adways’ sole discretion. Pursuant to this Section 5.5, Adways may maintain and continue to use any Reporting Data collected through Customer’s use of the Service prior to termination of this Agreement or the licenses granted hereunder.
5.6 Data Storage. Unless requested by Customer, Adways will not store any Customer Data other than as necessary to provide the Service. If requested by Customer, Adways may store Customer Data on an extended basis on behalf of Customer subject to the execution of a data storage addendum to this Agreement and Customer’s payment of Adways’ then current fees therefor.
5.7 Application Distribution Channels. Customer acknowledges that the Service is offered only for Customer Applications distributed through “app stores” approved by Adways, as Adways may designate from time to time. For the avoidance of doubt, the foregoing shall not prevent Customer from marketing or distributing the Customer Application via other means, but the Service does not extend to Customer Applications not downloaded from approved app stores.
5.8 Suggestions License. Customer hereby grants to Adways a fully paid-up, royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Users relating to the operation of the Service.
6.1 Restrictions on Use and Disclosure. Each party agrees: (i) to protect and safeguard the other party’s Confidential Information against unauthorized use, publication or disclosure with the same degree of care that it uses to protect the confidentiality of its own Confidential Information and, in any event, not less than reasonable care; (ii) to restrict access to the other party’s Confidential Information to those of its officers, directors, employees, agents, attorneys, accountants, investment advisors, and contractors who have confidentiality obligations that afford the Confidential Information a substantially similar level of protection as is afforded by this Agreement; and (iii) not to use, or permit others to use, the other party’s Confidential Information except as is reasonably necessary to perform its obligations or exercise its rights under this Agreement. Each party shall return or destroy all Confidential Information of the other party upon the termination or expiration of this Agreement or upon the request of the other party; provided, however, neither party shall be required to return or destroy information or materials that it must retain during or after termination or expiration of this Agreement in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement.
6.2 Exceptions. The foregoing restrictions shall not apply to information that the receiving party can show: (i) is already known to the receiving party without restriction on use or disclosure at the time of communication to the receiving party; (ii) is or becomes publicly known through no wrongful act or inaction of the receiving party; (iii) has been rightfully received from a third party authorized to make such communication, without restriction on use or disclosure; or (iv) has been independently developed by the receiving party without use of the Confidential Information of the other party.
6.3 Compelled Disclosure. Notwithstanding any other provision of this Agreement, each party may disclose Confidential Information of the other party if such disclosure is required by an order of a court or other governmental authority, law or regulation, but only to the extent that any such disclosure is necessary and after notice to the other party if practicable. In such case, the party required to make the disclosure shall, at the other party’s expense, assist the other party in obtaining an order protecting the Confidential Information from public disclosure, or in otherwise minimizing and limiting the breadth and scope of such disclosure.
6.4 Confidentiality of Agreement. Each party agrees that the terms and conditions, but not the existence and general nature, of this Agreement shall be treated as Confidential Information, provided, however, that each party may disclose the terms and conditions of this Agreement: (i) as required by any court or other governmental body, subject to the provisions of Section 6.2; (ii) in connection with an initial public offering or other securities filing; (iii) to legal counsel of the parties; (iv) in confidence, to accountants, banks, and financing sources and their advisors; (v) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (vi) in confidence, in connection with an actual or prospective merger, acquisition or similar transaction.
6.5 Remedies. Each party understands and acknowledges that any disclosure or misappropriation of any of the disclosing party’s Confidential Information in violation of this Agreement may cause the disclosing party irreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the disclosing party shall have the right to apply to a court of competent jurisdiction for an order restraining any such further disclosure or misappropriation and for such other relief as the disclosing party shall deem appropriate. Such right of the disclosing party shall be in addition to the remedies otherwise available to the disclosing party at law.
7. Warranties & Disclaimers.
7.1 Warranties. Each party hereby represents, warrants, and covenants to the other that: (i) it has the power to enter into and perform this Agreement; (ii) this Agreement’s execution has been duly authorized by all necessary corporate action of the party; (iii) this Agreement constitutes a valid and binding obligation on the party, enforceable in accordance with its terms; (iv) no consent or approval of any other person or governmental authority is necessary for this Agreement to be effective; and (v) neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by it would constitute a default or violation of the party’s articles of incorporation (or similar formation document or agreement), bylaws, or any license, lease, franchise, mortgage, instrument, or other agreement. Adways further represents and warrants that the Service will be provided in a diligent and professional manner consistent with industry standards.
7.2 Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, AND EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ADWAYS DOES NOT WARRANT THAT THE SERVICE OR THE ADWAYS SDK WILL: (I) BE UNINTERRUPTED; (II) BE FREE FROM INACCURACIES, ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS; (III) MEET CUSTOMER’S REQUIREMENTS; OR (IV) OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE CUSTOMER USES. CUSTOMER’S USE OF THE SERVICE AND THE ADWAYS SDK IS SOLELY AT CUSTOMER’S RISK.
8.1 Indemnification from Customer. Customer shall indemnify and hold Adways and its affiliates, and their employees, representatives, agents, directors, officers, managers and shareholders (the “Adways Indemnified Parties”) harmless, and at Adways’ option defend the Adways Indemnified Parties, from and against any third-party damages, losses, costs, settlements, judgments, awards, fines, penalties, interest, liabilities, or expenses (including without limitation, reasonable attorneys’ fees and disbursements and court costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought against any of the Adways Indemnified Parties arising out of (i) Customer’s use of the Service other than in accordance with this Agreement and applicable law, or (ii) any breach or alleged breach by Customer of any of its obligations under this Agreement; provided Adways must promptly notify Customer of such Claim. If Customer is obligated to provide indemnification, Customer may, in its sole and absolute discretion, control the defense and disposition of any Claim at Customer’s sole cost and expense. Without limiting the foregoing, Customer will not settle, compromise or in any other manner dispose of any Claim without the prior written consent of Adways.
8.2 Indemnification from Adways. Adways shall indemnify and hold Customer and its affiliates, and their employees, representatives, agents, directors, officers, managers, members and shareholders (the “Customer Indemnified Parties”) harmless, and at Customer’s option defend the Customer Indemnified Parties, from and against any damages, losses, costs, settlements, judgments, awards, fines, penalties, interest, liabilities, or expenses (including without limitation, reasonable attorneys’ fees and disbursements and court costs) incurred in connection with any Claim brought against any of the Customer Indemnified Parties arising out of any allegation that the Service violate or infringe upon the intellectual property rights of any third party; provided that Customer must promptly notify Adways of such Claim. If Adways is obligated to provide indemnification, Adways may, in its sole and absolute discretion, control the defense and disposition of any Claim at Adways’ sole cost and expense. Without limiting the foregoing, Adways will not settle, compromise or in any other manner dispose of any Claim without the prior written consent of Customer.
9. Limitation of Liability.
9.1 Exclusion of Damages. ADWAYS WILL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, AND EVEN IF ADWAYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NOTHING IN THIS SECTION 9.1 WILL BE CONSTRUED TO LIMIT CUSTOMER’S OBLIGATION TO INDEMNIFY ADWAYS PURSUANT TO SECTION 8 FOR DAMAGES AWARDED TO A THIRD PARTY EVEN IF SUCH DAMAGES ARE CHARACTERIZED AS INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES SUFFERED BY THAT THIRD PARTY.
9.2 Limitation on Liability. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, IN NO EVENT WILL ADWAYS’ LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO ADWAYS IN THE SIX MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION RELATING TO SUCH LIABILITY AROSE.
10. Term & Termination.
10.1 Term of Agreement. Unless terminated earlier by either party in accordance with Section 10.2, this Agreement shall commence on the Effective Date and remain in effect for a period of twelve (12) months thereafter (the “Initial Term”). Notwithstanding the foregoing, this Agreement shall be automatically renewed for additional, successive terms of twelve (12) months (each, a “Renewal Term”) unless, at least sixty (60) days prior to the expiration of the Initial Term or any Renewal Term, either party provides the other party with written notice of its desire not to renew this Agreement. Such right of non-renewal may be exercised by either party, with or without cause.
10.2 Termination. This Agreement and the Service may be terminated immediately upon written notice:
(a) by either party if the other party breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach;
(b) by either party if the other party (i) becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization, (iv) has a receiver appointed, or (v) institutes any proceedings for the liquidation or winding up; provided, however, that, in the case any of the foregoing is involuntary, such party shall only be in breach if such petition or proceeding has not been dismissed within ninety (90) days;
(c) by Adways for convenience upon notice to Customer; and
(d) by Customer upon five- (5) day’s written notice to Adways.
10.3 Effect of Termination or Expiration. Upon termination or expiration of this Agreement: (i) Adways shall deactivate Customer’s user logins and passwords and terminate Customer’s access to the Service, and Customer shall immediately cease all use of the Service (including updating all Customer Applications to remove Adways SDK) and promptly return to Adways any Confidential Information received from Adways; and (ii) Adways shall have the right to delete the Reporting Data and any Customer Data stored in connection with the Service pursuant to Section 5.6. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Adways prior to the effective date of termination.
10.4 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 4, 5 (excluding Section 5.2), 6, 7, 8, 9, 10 and 11, as well as any other terms hereof that by their intent or meaning would reasonably be deemed as intended to so survive.
11. General Provisions.
11.1 Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 Force Majeure. No failure or omission by either party to carry out or observe any of the terms and conditions of this Agreement (other than any payment obligation) shall give rise to any claim against such party or be deemed a breach of this Agreement if such failure or omission arises from causes beyond its reasonable control, including without limitation earthquake, flood, fire, or other natural disasters, acts of God, acts of civil or military authority, government priorities, labor controversy, civil disturbance, terrorism, epidemics, quarantine, energy crises, war, riots or any change in or the adoption of any law, regulation, judgment, or decree that would make the provision of or participation in the Service unfeasible or not commercially reasonable to continue (each, a “Force Majeure Event”). Each party shall promptly notify the other party after the occurrence of such event.
11.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.4 Notices. All notices required under this Agreement shall be in writing, and shall be considered given upon the date of delivery by e-mail.
11.5 Assignment. Customer may not assign its rights or delegate its obligations under this Agreement without the prior written consent of Adways, except that Customer may assign its rights and delegate its obligations under this Agreement to a person or entity into which it has merged or which has otherwise succeeded to all or substantially all of its business, stock, or assets, and which has assumed in writing or by operation of law its obligations under this Agreement. Adways may assign its rights or delegate its obligations under this Agreement at any time. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
11.6 Governing Law ; Arbitration. The laws of Japan (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement. All disputes, controversies or differences which may arise between the parties, out of or in relation to or in connection with this Agreement, or the breach thereof, which cannot be resolved by the parties after discussion in good faith attempting to reach an amicable solution, shall be finally settled by arbitration in Tokyo, in accordance with the Commercial Arbitration Rules of The Japan Commercial Arbitration Association. The award of the arbitrator（s） shall be final and binding upon the parties hereto. If either party commences any action or proceeding against the other party to enforce this Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the other party the actual costs, expenses and attorneys’ fees (and all related costs and expenses), incurred by such prevailing party in connection with such action or proceeding and in connection with enforcing any judgment or order thereby obtained.
11.7 Neutral Construction. Each party warrants and represents that it has sought and received legal counsel of its own choosing with regard to the contents of this Agreement and the rights and obligations affected hereby. The parties agree that this Agreement shall not be construed against a party on the grounds that the party drafted or was more responsible for drafting its provision(s).
11.8 Electronic Signatures. Customer acknowledges and agrees that by clicking on the “Submit” button, or such similar links as may be designated by Adways as a means of accepting this Agreement, you are submitting a legally binding electronic signature and are entering into a legally binding contract. Customers acknowledges that its electronic submissions constitute its agreement and intent to be bound by this Agreement pursuant to any applicable statutes, regulations, rules, ordinance or other laws, without limitation, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE PRODUCTS AND/OR SERVICES OFFERED BY ADWAYS. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic means.
11.9 Miscellaneous. This Agreement constitutes the final agreement between the parties, and is the complete and exclusive expression of the parties’ agreement on the matters contained in this Agreement. The parties may waive any provision in this Agreement only by a writing executed by the party against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the parties, will operate as a waiver of any continuing or succeeding breach, or as a waiver of any right, remedy or condition. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement remain in full force, if the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable. The parties may execute this Agreement in counterparts, each of which constitutes an original, and all of which, collectively, constitute only one agreement. The parties agree to execute such further instruments and to take such further action as may be reasonably necessary to carry out the intent of this Agreement.
Publicity. Customer and Adways agree to engage in the following publicity activities, none of which will disclose any Confidential Information:
Adways may issue a press release announcing its partnership with Customer.
Customer makes itself reasonably available from time to time for reference calls from prospective Adways clients and/or investors.
Adways may publish case studies describing value created for Customer through Adways.
Marketing. Customer agrees to engage in the following activities that are intended to hasten the adoption of the Service:
Adways may lists Customer as a client and publish Customer logo on its website for as long as this Agreement remains in effect.
Party Track Service System Flow and Specifications
- clicks on a banner advertisement or other advertisement of Customer.
- advertisement pings the Network server with certain ID information on the end-user (“Identifier”) and the Network server forwards the end-user’s Identifier to Party Track. Party Track has the ability to track one or more of the following Identifiers: IDFA, Google Advertising ID, or other necessary information.
- end-user is directed to the appropriate application store or download site.
- end-user downloads the Customer Application advertised in Customer’s banner advertisement.
- Customer Application (containing Party Track’s SDK) launches.
- Party Track SDK pings the Adways servers with specific information, which may include, but not limited to: Device ID(IDFA, Google Advertising ID), OS ID, User ID, Device IP, Device Name, Device Type, Device Carrier, Device OS Version, Country Code, Language, Package Name, App Name, App Version, Click Referrer, Click Device IP, Click Datetime, and Useragent.
- Network and Party Track APIs exchange necessary end-user information to confirm and track downloads of the application.
- may view relevant tracking analytics through the reporting interface as part of the Service.