Thank you for participating as a supply side partner for the Kochava Collective. By providing Analytical Data to
the Kochava Collective Site (“Services”), you agree to the terms below (the “Agreement”).
Under the Agreement, “Kochava” means Kochava Inc. Hereafter, Kochava may also be referred to as “we,” “our,” or
“You,” “your,” and “Company” means the data supply partner.
Under the Agreement, you and Kochava may be referred to collectively as the “Parties” or individually as a
WHEREAS, Company is supplier of Analytical Data, or other electronic services;
WHEREAS, Kochava is a developer and distributor of services for mobile application developers, publishers and
mobile services, and in particular the services called Kochava™ and Kochava’s Collective™ found at kochava.com,
(“Kochava’s Site” and“Kochava’s Collective Site,” respectively);
WHEREAS, Kochava processes Analytical Data by way of the Service’s proprietary matchmaking algorithm in order to
pair Demand-Side Advertisers with Supply-Side Service Providers;
WHEREAS, Kochava charges Demand-Side Advertisers a fee for pairing Demand-Side Advertisers with Supply-Side
Service Providers; WHEREAS, the Parties wish to enter into this Agreement whereby Company provides Analytical
Data to Kochava for processing; and WHEREAS, Kochava either shares revenue with Company for fees derived from
such Analytical Data or Kochava pays Company a flat rate for the use of such Analytical Data in accordance with
an Insertion Order.
attached Exhibit A – Fees, Revenue Share and Payment Terms, all of which are incorporated into and made a part
of this Agreement, and have caused their duly authorized representatives to execute this Agreement below as of
the Effective Date.
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth in this Agreement, the Parties
agree as follows:
- “Analytical Data” means the Company Data authorized by you for use by Kochava to provide Services
via Kochava’s Collective Site set forth in Exhibit A.
- “Company Data” means all electronic data and information submitted by you to Kochava.
- “Confidential Information” means all information, oral or written, disclosed by a Party to another
Party that is designated as confidential or that should be reasonably understood as confidential
given the nature of the information and the circumstances of disclosure.
- “Demand-Side Advertiser” means an entity utilizing the Services for the purpose of accessing
audience data segments paired with Supply-Side Service Provider(s) where those audiences can be
- “Malicious Code” means viruses, worms, time bombs, Trojan horses or any other such harmful or
malicious code, files, scripts, agents or programs.
- “Marks” means trademarks, service marks, and logos.
- “Materials” means all Segments, text, software, scripts, graphics, photos, sounds, music, videos,
interactive features and the like.
- “Registration Data” means true, accurate, current, and complete information about you.
- “Segments” means an aspect of the Services available from Kochava.
- “Sensitive Data” means all data which you are not authorized under applicable law or best industry
practices to transmit as Analytic Data, including, but not limited to, personally identifiable
information of a data subject under the age of thirteen, social security numbers with associated
names, credit, debit or financial account numbers with associated names, and any other data that you
may not lawfully transmit to Kochava for processing as Services.
- “Services” means the online, web-based platform provided by Kochava via Kochava’s Collective Site,
the specific web-based applications identified on that platform, the persistent store of devices and
attributes of devices, related software development kits (“SDK”), and other designated websites
identified in the User Guide.
- “Supply-Side Service Provider” means an entity utilizing the Services for the purpose of being
matched with consumers of mobile advertising inventory.
- “User Guide” means the online user guide for the Services, accessible via Kochava’s Collective Site,
as updated at http://support.kochava.com.
2. Proprietary Rights.
The Materials on Kochava’s Collective Site and the Materials used in connection with the Services are
owned by, or licensed to, Kochava. The Marks on Kochava’s Collective Site and the Marks used in
connection with the Services are owned by, or licensed to, Kochava.
3. Use of Services.
The Materials on Kochava’s Collective Site and the Materials used in connection with the Services are owned by, or licensed to, Kochava. The Marks on Kochava’s Collective Site and the Marks used in connection with the Services are owned by, or licensed to, Kochava.
4. Kochava’s Duties.
Kochava, through the exercise of good faith, shall:
- Actively engage Demand-Side Advertisers to drive demand for Supply-Side Service Providers; and
- Provide Demand-Side Advertisers with audience data segments paired to Supply-Side Service Providers
(“Paired Parties”) in accordance with Kochava’s proprietary matchmaking algorithm.
5. Prohibited Activities.
You agree that you will not:
- Download, modify, duplicate, rent, lease, loan, sell, distribute, or create derivative works based
on Kochava’s Collective Site, the Services, or the Materials, in whole or in part;
- Use the Services or the Materials for any commercial purpose that exceeds the express purpose of
this Agreement without Kochava’s prior express written permission;
- Access Kochava’s Collective Site or the Services by any means other than through the interface or
API provided by Kochava for such access;
- License, sublicense, resell, transfer, or assign to a third party any right to use the Kochava’s
Collective Site or the Services;
- Operate as a service bureau or otherwise use Kochava’s Collective Site or the Services on behalf of,
or for the benefit of, a third party;
- Modify, copy, or create derivative works from Kochava’s Collective Site, the Services, or the
- Access, decompile, reverse engineer, or attempt to access, decompile, or reverse engineer, the
software or technology through which Kochava provides Kochava’s Collective Site and the Services;
- Use Kochava’s Collective Site, the Services, or the Materials to create or modify a competitive
product or service;
- Create Internet “links” to Kochava’s Collective Site, the Services, or the Materials without
Kochava’s prior express written permission;
- Frame or mirror Kochava’s Collective Site, the Services, or the Materials on any server or wireless
or Internet-based device without Kochava’s prior express written permission;
- Gain, or attempt to gain, unauthorized access to Kochava’s Collective Site, the Services, the
Materials, the networks, or the systems through which Kochava provides Kochava’s Collective Site,
the Services, or the Materials, by any means other than the interface provided by Kochava for your
- Modify, reroute, or attempt to modify or reroute, Kochava’s Collective Site, the Services, or the
- Use Kochava’s Collective Site, the Services, or the Materials in any manner that could damage,
disable, overburden, or impair the Kochava’s Collective Site, the Services, or the Materials,
regardless of foreseeability;
- Interfere with any other party’s use or enjoyment of the Kochava’s Collective Site, the Services, or
- Send Kochava material containing Malicious Code;
- Use Kochava’s Collective Site, the Services, or the Materials for an illegal purpose or activity;
- Post, upload, transmit, engage in behavior, or otherwise use Kochava’s Collective Site or the
Services in a manner that is harassing, infringing, libelous, invasive of another’s privacy,
harmful, threatening, fraudulent, deceptive, obscene, otherwise unlawful or tortious, or that may
give rise to civil liability, including, but not limited to sending, transmitting, or using
Kochava’s Collective Site or the Services in a manner associated with any unsolicited bulk messages
or unsolicited commercial messages (“Spam”);
- Remove, deface, or obscure any of Kochava’s, or Kochava’s providers’, suppliers’, or licensors’
copyright, trademark, or other proprietary notices on, in, or associated with Kochava’s Collective
Site or the Services; or
- Permit a third party to engage in any of the above prohibited activities.
6. Grant of Right to Analytical Data.
The rights granted in this Section apply to Analytical Data received by Kochava prior to, concurrent
with, and following execution of this Agreement. In consideration of Section 3, you grant Kochava an
irrevocable and perpetual right to:
- Receive, store, modify, use, license, sublicense, offer, and sell your Analytical Data, including
but not limited to Segments, for the purpose of developing, providing, and delivering the Services
and the Materials on Kochava’s Collective Site; and
- Enhance or augment your Analytical Data with other data obtained by Kochava from third
You may revoke the rights granted in this Section on the condition that:
- Kochava fails to remain in material compliance with this Agreement
7. Sensitive Data.
You warrant that you will not transmit Analytical Data containing Sensitive Data to Kochava. If you
transmit Sensitive Data to Kochava, then Kochava may modify such Sensitive Data, at Kochava’s sole
discretion, to be usable under the terms of this Agreement. Alternatively, Kochava may reject or dispose
of such Sensitive Data at Kochava’s sole discretion.
8. Pricing, Revenue Share and Payment Terms.
Demand-Side Advertiser Insertion Orders will govern pricing, payment policies and revenues generated by
the Services that use Company’s Analytical Data.
Kochava shall pay Company or its designee on or around the first of each month. Kochava will tender such
payment no sooner than thirty days following receipt of revenue derived from the Analytical Data. Upon
Company’s reasonable request and prior notice, Kochava will submit reports or statements relating to
revenue together with monthly payments to Company.
Kochava shall maintain consistently applied, accurate and complete books, records and other documents.
Upon reasonable request, Company or its representative may at Company expense audit Kochava’s books or
records as necessary to verify Kochava’s adherence to the Agreement’s terms and conditions. Audits must
be during Kochava’s regular business hours Kochava’s principal place of business. Kochava will
reasonably cooperate with Company in conducting any such audit. If any audit under this section reveals
a past under or overpayment of any amount due under this Agreement, then the Party owing such amount
must correct the under or overpayment by paying the other Party all sums due in full within 10 business
days after receiving a written audit or report.
9. Modifications to the Site or Services.
Kochava’s Collective Site and the Services are continually under development. Modifications to Kochava’s
Collective Site and the Services, including, but not limited to, adding and deleting services or
features, may be made at any time by Kochava without notice to you. Kochava will use reasonable efforts
to provide thirty calendar days’ notice to you prior to removing features to which you have been granted
access. Kochava is not liable to you or any third party for any modification of Kochava’s Collective
Site or the Services.
Kochava uses Analytical Data to develop, provide, and deliver the Services. Your Confidential Information
includes all Company Data, but does not include the Analytical Data you submit for use by Kochava’s
Collective Site, de-identified click data, and de-identified aggregated and anonymized conversion data.
Kochava’s Confidential Information includes, but is not limited to, the Services. Confidential
Information includes the terms and conditions of this Agreement. Confidential Information includes all
business or marketing plans, technologies or technical information, product plans or designs, and
business processes disclosed by one Party to the other. Confidential Information does not include
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.
- Protection of Confidential Information. Except as otherwise permitted in writing by the disclosing
Party, the receiving Party shall: (i) use reasonable care to not disclose or use the disclosing
Party’s Confidential Information for any purpose outside the scope of this Agreement; (ii) limit
access to the disclosing Party’s Confidential Information to its employees, contractors, and agents;
and (iii) obtain confidentiality agreements containing protections no less stringent than those
herein from its employees, contractors, and agents who need access to the Confidential Information
for purposes consistent with this Agreement.
- Compelled Disclosure. The disclosing Party grants the receiving Party permission to disclose the
disclosing Party’s Confidential Information on the conditions that the receiving Party is compelled
by law to disclose it and provides, to the extent legally permitted, notice to the disclosing Party
prior to disclosure. If the disclosing Party wishes to contest disclosure, then the receiving Party
agrees to provide reasonable assistance. The disclosing Party agrees to pay all costs associated
with contesting 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, then the disclosing Party shall
reimburse the receiving Party for the reasonable costs of compiling and providing secure access to
the Confidential Information.
11. Third Parties.
Kochava requires each of its service providers to be bound by an agreement in which the service provider
agrees to respect your intellectual property rights in accordance with this Agreement.
Kochava’s Collective Site may link to third party sites not owned or controlled by Kochava. You
acknowledge that other Kochava client’s access and use Kochava’s Collective Site and the Services. You
expressly disclaim any restriction to such Kochava client access and use. Kochava expressly disclaims
liability for the actions of other Kochava clients and users of Kochava’s Collective Site or the
Services. Kochava expressly disclaims liability for the contents of third party web sites. The opinions
expressed by other users of Kochava’s Collective Site or the Services do not necessarily represent those
of Kochava, nor is Kochava responsible in any way for the words or actions of such persons or
Upon termination of this agreement, Kochava will delete or remove your Analytical Data from the Services.
Kochava is under no obligation to provide monetary compensation to you in the event of termination.
- Kochava’s Right to Terminate. Kochava reserves the right to delete your account and terminate
services if: (i) you act in a manner that Kochava determines to be threatening, violent, disruptive,
or offensive toward us, one of our service providers, another user, or any third party; (ii) you are
in material breach of this Agreement; (iii) you are subject to a bankruptcy or insolvency
proceeding; or (iv) you have not contributed Analytical Data to Kochava for the population of the
Services for a period of six months.
- Your Right to Terminate. You may terminate this Agreement and your use of Kochava’s Collective Site
and the Services for any reason. Termination is effective thirty calendar days’ following receipt by
Kochava of your written notice of termination. Following termination, you are prohibited from
accessing or using Kochava’s Collective Site, the Services, and the APIs.
13. Quality of Service.
Kochava will use commercially reasonable efforts to render the Services. The Services will be available
for use (for example, responding to installs, clicks, and end-user interaction) at an availability
metric of no less than 99.9% uptime over a rolling, yearly basis. Kochava agrees to use ongoing
reasonable efforts to keep Kochava’s Collective Site accurate and current.
14. Limitation of Liability.
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. Kochava disclaims
liability for inaccuracies in Kochava’s Collective Site and the Services. Kochava disclaims liability
for damages resulting from the use of information on Kochava’s Collective Site or the Services.
Kochava is not liable to you or any third party for any damages in connection with any defect, perceived
or real, in the Services.
You agree that neither Kochava nor any service provider in any way guarantees a particular outcome (e.g.,
increased sales, etc.) as a result of your use of Kochava’s Collective Site or the Services. By
accepting this Agreement, you expressly agree that you understand the limitations of liability set forth
in this Agreement. You expressly promise not to seek damages against Kochava or its agents, suppliers,
licensors, or service providers for any perceived or real defect in Kochava’s Collective Site or the
Services, or for any consequences of such a defect.
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, KOCHAVA DISCLAIMS LIABILITY TO ALL PARTIES FOR LOST
PROFITS, REVENUES, AND INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, IF ANY.
THIS DISCLAIMER APPLIES TO ALL LIABILITY, IRRESPECTIVE OF HOW SUCH LIABILITY WAS CAUSED- WHETHER IN
CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER THE PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
The Parties’ indemnification obligations under this Agreement notwithstanding, if any limitation or
exclusion of liability is not enforceable, then the aggregate liability of one Party unto the other
Party under this Agreement will not exceed $10,000.00.
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.
THE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE APPLICABLE NOTWITHSTANDING ANY
FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- Kochava’s Warranties. Kochava warrants that the Services will perform materially in accordance with
the User Guide. Kochava warrants that it will perform the Services in compliance with all applicable
laws, rules, and regulations, including, without limitation, those relating to data protection,
privacy, confidentiality, and subjects under the age of thirteen. The Parties acknowledge that
informational privacy laws vary by source and origination of traffic. As such, changes in the law
may result in Kochava changing the Services or Kochava’s Collective Site.
- Your Warranties. You warrant that you: (i) have all rights in the Company Data and Analytic Data
submitted to Kochava; (ii) have the authority to grant the license to the Analytic Data to Kochava;
(iii) will use the Services only in accordance with this Agreement, Additional Terms (if any), and
operable law; and (iv) will only transmit Company Data and Analytical Data in compliance with all
applicable laws, rules, and regulations, including, without limitation, those relating to data
protection, privacy, confidentiality, and subjects under the age of thirteen.
- Mutual Warranties. Both Parties warrant that they will maintain appropriate administrative,
physical, and electronic protections for Company Data and Analytical Data.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OF ANY
KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Kochava shall defend you and indemnify you for reasonable attorney’s fees incurred by you and
damages finally awarded against you on the condition that:
- You are not in breach of any warranty under this Agreement;
- The claim, demand, suit, or proceeding made or brought against you by a third party
specifically alleges that the Services infringed or misappropriated the intellectual
property rights of the third party;
- You promptly give Kochava written notice of the claim, demand, suit, or proceeding;
- You give Kochava sole control of the defense and settlement of the claim, demand, suit, or
- You provide Kochava with all reasonable assistance, at Kochava’s expense.
- You shall defend Kochava and indemnify Kochava for reasonable attorney’s fees incurred by Kochava
and damages finally awarded against Kochava on the condition that:
- The claim, demand, suit, or proceeding made or brought against Kochava by a third party
alleges that the Analytic Data infringes or misappropriates the intellectual property rights
of a third party or violates applicable law;
- Kochava provides you with a record of all Analytical Data belonging to you that relates to
the claim, demand, suit, or proceeding;
- Kochava promptly gives you written notice of the claim, demand, suit, or proceeding;
- Kochava gives you sole control of the defense and settlement of the claim, demand, suit, or
- Kochava provides you with all reasonable assistance, at your expense.
- The claim, demand, suit, or proceeding made or brought against Kochava by a third party
17. Governing Law; Dispute Resolution.
This Agreement is governed by the laws of the state of California, without regard to its principles of
conflict of laws.
All disputes, controversies and claims arising out of or relating to the use of Kochava’s Collective
Site, the Services, or this Agreement, including any breach thereof, must be submitted to binding
arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules.
Arbitration will be conducted in San Francisco, CA. Judgment on the award rendered may be entered in any
court having jurisdiction.
Where Kochava determines that your breach of this Agreement (including a 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 a
court of competent jurisdiction without first resorting to arbitration.
18. Jurisdictional Issues.
Kochava’s Collective Site and the Services is controlled and operated by Kochava in the United States.
Kochava makes no representation that Kochava’s Collective Site, the Services, or the Materials are
appropriate or available for use in all locations worldwide. You are solely responsible for compliance
with all applicable local laws. You are prohibited from accessing Kochava’s Collective Site and the
Services from jurisdictions where the content of Kochava’s Collective Site and the Services is
If you provide to us, in any way, comments regarding Kochava’s Collective Site or the Services, you agree
that Kochava (and our providers, suppliers and licensors) may use, share, commercialize, and exploit
such comments without obligation or liability to you or any third party. You shall not submit any
comment that is confidential or subject to third party rights.
- 20. Miscellaneous.
This Agreement, and any document incorporated into this Agreement, constitutes the entire agreement
between you and Kochava and supersedes any prior agreement and understanding, whether written or
oral, between you and Kochava.
- No modification, amendment, or waiver of any provision of this Agreement (other than any Additional
Terms set forth on Kochava’s Collective Site) is effective unless in writing and signed by the Party
against whom the modification, amendment, or waiver is to be asserted. No waiver of any right under
this Agreement will be deemed to be a waiver of any preceding or subsequent right or other
provision, and no delay or omission in exercising a right will be deemed a waiver of such right.
- 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
- As used in this Agreement, the words “including,” “for example,” and derivatives such as “e.g.,”
mean “including without limitation.”
- You agree that the Uniform Computer Information Transactions Act, to the extent applicable to
Kochava’s Collective Site, Analytic Data, the Services, the Materials, and your access and use
thereof, does not apply to this Agreement.
- If any portion of this Agreement is deemed invalid, void, or for any reason unenforceable, that
portion is deemed severable and does not affect the validity or enforceability of the remaining
terms of this Agreement.
- If you do not file a claim or cause of action related to this Agreement or your use of Kochava’s
Collective Site or the Services arises within one year from such claim or cause of action arising,
then it is forever barred, regardless of any statute or law to the contrary.
- This Agreement is personal to you. You may not assign any of your rights under this Agreement to any
third party without Kochava’s prior express written permission. You may not delegate any duty or
obligation under this Agreement to any third party without Kochava’s prior express written
permission. Any attempted assignment or delegation in contravention of this provision is null and
- All provisions of this Agreement (including all other incorporated terms, conditions, rules,
guidelines, and requirements) intended by their terms to survive the expiration, termination, or
cancellation of this Agreement, survive any such expiration, termination, or cancellation.