By accessing or using the Free App Analytics application programming interface (“API”), you agree to the terms below (the “Agreement”).
Under the Agreement, “Free App Analytics” means Kochava Inc., a Delaware corporation with its principal place of business located in Sandpoint, Idaho. Hereafter, Free App Analytics may also be referred to as “we,” “our,” or “us.” Free App Analytics is a developer and distributor of services for mobile application developers and publishers, particularly the services found at freeappanalytics.com (the “Site”).
Under the Agreement, “you,” “your,” or “Company” means you individually and any entity with which you have the authority to bind to the terms of this Agreement.
You and Free App Analytics may be referred to collectively as the “Parties” or individually as a “Party” in this Agreement.
If you use or access the API on behalf of an entity, then you represent and warrant that you have authority to bind that entity to the terms of this Agreement. Furthermore, you represent and warrant that your use and access of the API on behalf of an entity is performed as an authorized agent of that entity.
You shall not use or access the API, nor shall you accept the terms of this Agreement, if:
- You are not of legal age to form a binding contract with Free App Analytics; or
- You are a person or entity barred from using or receiving the API under the applicable laws of the United States or any other country, including, but not limited to, the country in which you reside or from which the API is used or received.
a. “Transaction Data” means all electronic data or information submitted by Company to the Services either directly or via software development kits.
b. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
c. “Services” means the online, web-based platform provided by Free App Analytics via the Site, any related software development kits (SDK), and/or other designated websites.
2. Additional Terms
3. Proprietary Rights
The Site and the Services contain proprietary and confidential information that is available only to registered users and is protected by applicable intellectual property and other laws. The content on the Site and in the Services, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (collectively, “Materials”) and the trademarks, service marks and logos on the Site or used in connection with the Services (“Marks”), are owned by or licensed to Free App Analytics, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions.
4. Use of the Services
5. Grant of Right to Transaction Data.
The rights granted in this Section apply to Transaction Data received by Free App Analytics prior to, concurrent with, and following execution of this Agreement. In consideration of Section 4, you grant Free App Analytics an unrestricted, irrevocable, and perpetual right to:
a. Receive, store, modify, use, license, sublicense, offer, and sell Transaction Data, including but not limited to Segments; and b. Enhance or augment your Transaction Data with other data obtained by Free App Analytics from third parties.
The Site and the Services are continually under development and changes to the Site and the Services, including adding or deleting services and/or features, may be made at any time. You agree that Kochava shall not be liable to you or to any third party for any modification of the Site or the Services and your sole remedy for such modification is for you to terminate your right to access and use the Site and Services as provided below.
7. Registration; Account Information
You must register to use the services as a client of the Site. You agree that you will: (a) provide true, accurate, current and complete information about yourself as prompted by our registration form (such information being the “Registration Data”) and (b) use commercially reasonable efforts to maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or if Free App Analytics has a reasonable ground to suspect that such information is untrue, inaccurate, not current or incomplete, Free App Analytics has the right to suspend or terminate your account and refuse any and all current or future use of the Site and the Services.
You may not transfer your account to any third party without Free App Analytics’ prior written consent. You will be assigned, or you must choose, a user name and password for access to and use of the Site and its services. You are responsible for maintaining the confidentiality of your user name and password and for all activities that occur through use of your account or under your user name and/or password. You agree to promptly notify us of any unauthorized use of your user name, password or any other breach of security that you become aware of involving or relating to the Site and the Services by emailing us at support@FreeAppAnalytics.com. In order to maintain the security of your account, we recommend that you exit from your account at the end of each session, in particular when using a public or shared computer. WE EXPRESSLY DISCLAIM LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING FROM YOUR FAILURE TO COMPLY WITH THIS SECTION.
Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each Party shall include business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. Confidential Information of Free App Analytics shall include Transaction Data and the Services. However, Confidential Information (other than Transaction Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For clarity, Kochava is free to use Transaction Data for any purpose.
a. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
b. Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9. Prohibited Activities and Content
You agree that you will not, nor will you permit any third party to: (a) license, sublicense, resell, transfer, or assign to a third party your right to use the Site and the Services, nor operate as a service bureau or otherwise use the Site or the Services on behalf of or for the benefit of a third party; (b) modify, copy or create derivative works from the Site or the Services or any of its Material; (c) attempt to access, decompile or reverse engineer the software and technology through which Free App Analytics provides the Site and the Services, or use the Site and the Services to create or modify a competitive product or service; (d) except with Free App Analytics’ prior express permission, create Internet “links” to the Site or the Services or “frame” or “mirror” the Site or the Services on any other server or wireless or Internet-based device; (e) attempt to gain unauthorized access to the Site or the Services or any content or the networks or systems through which Free App Analytics provides the Site and the Services, including access by any means other than the interface provided by Free App Analytics for access, or use any unauthorized means to modify or reroute the Site or Services (or attempt to do so); (f) use the Site and the Services in any manner which could damage, disable, overburden, or impair the Site or the Services or interfere with any other party’s use and enjoyment of the Site or the Services, or send or store material containing Malicious Code; (g) use the Site or the Services for an illegal purpose or in furtherance or encouragement of illegal activities, or (h) post, upload, transmit (or engage in behavior or otherwise use the Site or the Services in a manner) that is harassing, infringing, libelous, invasive of another’s privacy, harmful, threatening, fraudulent, deceptive, obscene, or otherwise unlawful or tortious, or that would give rise to civil liability, including without limitation to sending, transmitting or using the Site or the Services in any manner associated with any unsolicited bulk messages or unsolicited commercial messages (“spam”).
You may not remove, deface or obscure any of our or our providers’, suppliers’ or licensors’ copyright, trademark and other proprietary notices on, in or associated with the Site and the Services.
10. Third Parties
We require each provider of services to Free App Analytics to be bound by an agreement in which the service provider agrees to maintain the confidentiality of your personal information and to respect your intellectual property rights, in accordance with this Agreement.
In addition, the Site also may link to third party sites not owned or controlled by Free App Analytics. You also acknowledge and agree that the Site and the Services will be used by other clients and users. Free App Analytics is in no way liable for the actions of any other clients or users of the Site or the Services, or for the contents of any third party web sites. The opinions expressed by other users of the Site or the Services do not necessarily represent those of Free App Analytics, nor is Free App Analytics responsible in any way for the words or actions of such persons or entities.
11. Refusal and Termination of Services
Should any Client act in a manner that we determine to be threatening, violent, disruptive, or offensive toward us, one of our service providers, another Client, or any third party, Free App Analytics reserves the right to terminate any and all services then in progress prior to its completion, and the Client’s account. Free App Analytics may also terminate your account and delete your account (a) for material breach of this Agreement; (b) if you are subject to any bankruptcy or insolvency proceeding or are unable to satisfy your debts as they become due; or (c) if you have not used the Site or the Services for a period of 6 months.
12. Quality of Service; Limitation of Liability
Free App Analytics will use commercially reasonable efforts to render the Services. The Services shall be available for use (responding to installs, clicks and end-user interaction) at an availability metric of no less than 99.9% uptime over a rolling, yearly basis (“Acceptable System Availability”). With the exception of system availability, we cannot guarantee that the Site or the Services will meet all of your expectations, or that the Site or the Services will be entirely error-free. While reasonable efforts are made to keep the Site accurate and current, Free App Analytics assumes no liability for any inaccuracies in the Site or any of the Services or for any damages that may result from the use of information posted on the Site or any of the Services. As part of this assumption of risk, you acknowledge and agree that you are responsible for providing accurate and complete information when using the Services and for reviewing all materials generated by the Services.
If you are not satisfied with the Site or the Services, you are encouraged to immediately inform Free App Analytics by email at contact@FreeAppAnalytics.com. At no time, however, are we liable for damages in connection with any defect, perceived or real, in the Services rendered.
You further agree that neither Free App Analytics nor any Service Provider in any way guarantees a particular outcome (e.g., increased sales, etc.) as a result of the use of its services.
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
In any event, except for each Party’s respective indemnification obligations under this Agreement, if the above limitations and exclusions are not enforceable or do not apply, Free App Analytics’ and Company’s aggregate liability to the other in connection with the Site and the Services under this Agreement shall not exceed $10,000.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
13.1 Company Warranties. Company warrants that it is legally authorized to provide Transaction Data to Free App Analytics and has acquired necessary consents and/or provided required opt-out provisions according to applicable laws and regulations.
13.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
14.1 Indemnification by Free App Analytics. Free App Analytics shall defend Company against any claim, demand, suit, or proceeding (“Claim”) made or brought against Company by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Company for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Company in connection with any such Claim; provided that Company (a) promptly gives Free App Analytics written notice of the Claim, (b) gives Free App Analytics sole control of the defense and settlement of the Claim, and (c) provides to Free App Analytics all reasonable assistance, at Free App Analytics’ expense.
14.2 Indemnification by Company. Company shall defend Free App Analytics against any Claim made or brought against Free App Analytics by a third party alleging that the Transaction Data, or Company’s use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Free App Analytics for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Free App Analytics in connection with any such Claim; provided that Free App Analytics (a) promptly gives Company written notice of the Claim, (b) gives Company sole control of the defense and settlement of the Claim, and (c) provides to Company all reasonable assistance, at Company’s cost.
15. Governing Law; Dispute Resolution
Any dispute, controversy or claim arising out of or relating to the use of the Site, any of the Services, or this Agreement, including any breach thereof, shall be submitted to binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. Any arbitration shall be conducted in Spokane, Washington. Judgment on the award rendered may be entered in any court having jurisdiction thereof.
Without limiting the foregoing, where Free App Analytics determines in good faith that a breach of this Agreement by Company (including any breach related to confidential information or infringement of intellectual property rights) is such that a temporary restraining order or other injunctive relief is the only appropriate and adequate remedy, such action may proceed in any court of competent jurisdiction without first resorting to arbitration as described herein.
16. Electronic Communications
Notices and communications to Free App Analytics must be sent to the applicable address given in this Agreement.
17. Jurisdictional Issues
This Site and its services is controlled and operated by Free App Analytics in the United States. Kochava makes no representation that the Site, the Services or the Materials are appropriate or available for use in all locations worldwide. You are solely responsible for compliance with any applicable local laws. Access to the Site and the Services from jurisdictions where the contents of the Site and the Services are illegal or penalized is prohibited.
18.1 If you provide to us in any way any suggestions or comments regarding the Site or any of the Services, you agree that we (and our providers, suppliers and licensors) may use, share, commercialize and exploit any and all such feedback without obligation or liability to you or any third party, in perpetuity. You agree not to submit any feedback that is confidential or subject to any third party rights.
18.2 Additionally, Company consents to our publication of a “Case Study” about your use of Free App Analytics Services.
19. Facebook Attribution
20.2 No modification, amendment, or waiver of any provision of this Agreement (other than any Additional Terms set forth on the Site) shall be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. No waiver of any of any right under this Agreement shall be deemed to be a waiver of any preceding or subsequent right or other provision and no delay or omission in exercising any such right shall be deemed a waiver of such right.
20.3 The section and paragraph headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, govern, limit, modify or construe the scope or extent of such provisions.
20.4 As used in this Agreement, the words “including”, “for example” and derivatives such as “e.g.,” shall mean “including without limitation”.
20.5 You agree that the terms of the Uniform Computer Information Transactions Act, to the extent applicable to the Site or the Services and your access and use thereof, if at all, shall not apply to this Agreement.
20.6 If any portion of this Agreement is deemed invalid, void or for any reason unenforceable, such portion shall be deemed severable and shall not affect the validity and enforceability of the remaining terms of this Agreement.
20.7 You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement or your access to and use of the Site or the Services must be filed within one (1) year after such claim or cause of action arose or be forever barred.
20.8 This Agreement is personal to you and you may not assign it or your rights, nor may you delegate any obligation hereunder, to any third party without Free App Analytics’ advance written consent. Any attempted assignment or delegation in contravention of this provision is null and void.
20.9 Any provision of this Agreement (including all other incorporated terms, conditions, rules, guidelines and requirements) intended by its terms to survive the expiration, termination or cancellation of this Agreement, shall survive any such expiration, termination or cancellation.