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Kochava Pricing Guide

platform features basic plus lift growth enterprise
daily active users unlimited unlimited unlimited unlimited unlimited
non-attributed installs free free free free free
session tracking free free free free free
clicks $0.0025 $0.0020 $0.0015 $0.0010 Based on Volume
attributed installs $0.0025 $0.0020 $0.0015 $0.0010 Based on Volume
post install events $0.0025 $0.0020 $0.0015 $0.0010 Based on Volume
*SAN installs $0.0400 $0.0300 $0.0200 $0.0100 Based on Volume
value added features
view through attribution $0.00015 $0.000125 $0.00010 $0.000075 $0.00005
the collective $0.05 $0.05 $0.05 $0.05 $0.05
optimization beacon impressions $0.0005 $0.0005 $0.0005 $0.0005 $0.0005
data science reports $500 $500 1 per month included 1 per month included 1 per week included
traffic verifier - $0.00015 $0.00015 $0.00015 Based on Volume
dedicated account management -
agreement duration none 1 year 1 year 1 year 1 year
monthly minimum $100 $500 $1,000 $2,000 $15,000

* SAN (Self Attributing Network) Installs.

Service Agreement

Terms of Service

Your use of the Site and Platform is governed by this License and Service Agreement (“Agreement”). This Agreement serves as the contractual agreement between you (“Company”) and Kochava, Inc., a Delaware corporation (“Kochava”). This Agreement is effective as of the date Company activates its account (“Effective Date”). Kochava and Company may be referred to herein collectively as the “Parties” and individually as a “Party.” Unless otherwise provided herein, all capitalized terms used in this Agreement have the meaning ascribed to them on Exhibit A (Definitions).

By signing this Agreement, electronically or otherwise, or by accessing or using the Platform, Company agrees to be bound by this Agreement and all terms and conditions incorporated by reference.

Table Of Contents

Section 1.0 Scope Of Services
Section 2.0 Ownership
Section 3.0 Confidential Information
Section 4.0 Privacy
Section 5.0 Fees & Payment
Section 6.0 Term & Termination
Section 7.0 Information Security
Section 8.0 Representations; Warranties; Disclaimer
Section 9.0 Indemnification
Section 10.0 Limitation of Liability
Section 11.0 General
Exhibit A Definitions

Background

Kochava provides mobile advertising measurement analytics and attribution services to advertisers through its proprietary online software platform, available at kochava.com. The Kochava advertiser integrates a single SDK into its app, website, or connected device, which enables the Kochava platform to process certain electronic data relating to the installation and use of advertiser’s app or website. The Kochava SDK allows advertiser to leverage thousands of ad publisher and network partners integrated with Kochava across the globe. Advertiser customizes the platform through a user interface to configure attribution and analytics, determine exactly which data it wants to capture, which analyses it wants to perform, and which reports it wants to run. All data belongs to, and remains the exclusive property of, advertiser at all times, as advertiser grants Kochava a limited license to use its data for the purpose of providing these services.

WHEREAS, Kochava desires to perform mobile advertising measurement analytics and attribution services for Company, and Company desires to grant a limited license to Kochava to use Company Data under the terms and conditions of this Agreement.

WHEREAS, Company desires to acquire analytics and attribution services via the Platform, and Kochava desires to grant a limited license to Company to access and use the Platform under the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the following mutual covenants and agreements, and for other good and valuable consideration, the Parties hereby agree as follows:

  1. Scope Of Services
    1. Services. Kochava hereby grants a limited, non-exclusive, non-transferable, revocable license to Company to access and use the Platform during the Term, subject to the limitations of this Agreement. Kochava shall make available and license to Company all standard software development kits (“SDK”) and application program interfaces (“API”) necessary for Company to fully exercise the rights and licenses granted hereunder.
    2. Account Registration. Company must register with Kochava in order to use the Platform. Company must register on the Site unless Kochava instructs it otherwise. The registration process requires Company to provide true, accurate, current, and complete information about Company and to create a username and password. Company agrees to use commercially reasonable efforts to maintain true, accurate, current, and complete account information. Company is solely responsibility for all activities that occur under its registration and for maintaining the confidentiality and security of its username and password.
    3. Modification of Platform. Kochava may from time to time modify, remove features from, or upgrade the Platform. Kochava will use commercially reasonable efforts to notify Company of any material modification. Kochava will provide ninety days’ advance notice to Company in the event it intends to remove a feature licensed to Company. Company acknowledges that Kochava is not liable to Company or any Third Party for any modification made to the Platform. Company acknowledges that if it instruments the Platform to enable the use of a new feature following the Effective Date, then its use of the feature may be subject to additional fees.
    4. Support. Depending on its Tier, as further described the Pricing Guide, Company may receive support by contacting support@kochava.com or, if eligible, by way of a dedicated Account Management Pod (“Pod”). A Pod is an in-house team of Kochava employees that has personal knowledge of Company apps, account history, and objectives for utilizing the Platform. Each dedicated Pod includes a communications, operations, and technical leader. Kochava provides an eligible company with each Pod member’s individual email address and phone number, in addition to a personalized email alias with which the eligible company may contact its Pod with a single message.
    5. Service Levels. The Platform will operate and otherwise comply and function in all material respects on an uptime basis of 99.99% over a rolling annual basis. If an incident disrupts Company use of the Platform, then Kochava shall respond as follows:
    6. Critical Priority Incident rendering the Platform inoperative- Kochava shall respond to Company within one hour of notice and immediately begin replicating and verifying the problem.
    7. High Priority Incident degrading the operations and use of the Platform- Kochava shall respond to Company within four hours of notice and immediately begin replicating and verifying the problem.
    8. Medium Priority Incident affecting the operations of, but not degrading, the Platform- Kochava shall respond to Company within six hours of notice and immediately begin identifying and verifying the problem during normal business hours.
    9. Low Priority Incident having a minor impact on the operations of the Platform- Kochava shall respond to Company within eight hours of notice if alerted between 6:00am – 8:00pm PST Monday-Friday and begin identifying and verifying the problem two business days.
    10. Prohibited Activities. Company shall not: (i) download, duplicate, rent, loan, sell, distribute, or create derivative works based on the Platform or the Marks; (ii) use the Platform for any purpose not contemplated and intended by this Agreement; (iii) gain, or attempt to gain, access to the Platform, networks, or systems through which Kochava provides the Platform by any means other than the interface or API provided to Company by Kochava; (iv) license, sublicense, resell, transfer, or assign to a Third Party any right to use or access the Platform; (v) operate as a service bureau or otherwise use the Platform on behalf of, or for the benefit of, a Third Party; (vi) access, decompile, reverse engineer, or attempt to access, decompile, or reverse engineer the software or technology by which Kochava provides the Platform; (vii) use the Platform to create or modify a competitive product or service; (viii) create internet “links” to the Site without prior express written permission from Kochava; (ix) frame or mirror the Platform on any server or wireless or Internet-based device without prior express written permission from Kochava; (x) modify, reroute, or attempt to modify or reroute, the Platform; (xi) use the Platform in any manner that could damage, disable, overburden, or impair the Platform, regardless of foreseeability; (xii) interfere with any other party’s use or enjoyment of the Platform; (xiii) use the Platform for an illegal purpose or activity; (xiv) host, upload, transmit, engage in behavior, or otherwise use the Platform 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 the Platform in a manner associated with any unsolicited bulk messages or unsolicited commercial messages; (xv) send Kochava material containing malicious code, which may include without limitation, a virus, worm, time bomb, Trojan horse or other harmful code, file, script, agent, or program; (xvi) remove, deface, or obscure any copyright, trademark, or other proprietary notices on, in, or associated with the Platform, which belong to Kochava or any of its providers, suppliers, or licensors; (xvii) permit a Third Party to engage in any of the above prohibited activities; or (xviii) instrument the Platform to capture, handle, or otherwise process Personally Identifiable Information.
    11. Reservation of Rights. Kochava reserves the right to refuse Company access to the Platform or terminate this Agreement if Kochava reasonably determines Company engaged in any of the activities described in Section 1.6 (Prohibited Activities).
  2. Ownership
    1. Platform, Site, Marks. Kochava is the sole and exclusive owner of the Platform and the Site. Kochava owns or licenses the Marks. The Platform, Site, and Marks are protected by applicable intellectual property and other laws. Kochava reserves all rights, title, and interest in the Platform, Site, and Marks, and its intellectual property rights not expressly granted under this Agreement.
    2. Company Materials. Company is the sole and exclusive owner of all Company Materials. Kochava explicitly disclaims any ownership in Company Materials. Kochava shall not disclose, distribute, or otherwise disseminate Company Materials to any Third Party. Kochava shall not use Company Materials for any purpose not expressly authorized hereunder. Kochava shall, at the option of Company, promptly return or destroy all Company Materials in its possession. Company reserves all rights, title, and interest in all Company Materials and its intellectual property rights not expressly granted under this Agreement.
    3. Company Data. Company retains all right, title, and interest in and to all Company Data. Kochava has no rights in or to any Company Data not expressly indicated under this Agreement. Company hereby grants a limited, non-exclusive, non-transferable, royalty-free, revocable license to Kochava to collect, process, and use Company Data for the purpose of providing attribution, analytics, and related modeling and reporting services via the Platform.
    4. Third-Party Transfer. Kochava shall not syndicate, transfer, or otherwise enable the syndication or transference of Company Data to any Third Party unless Company specifically instruments the Platform to do so. In the event Company instruments the Platform to transfer Company Data to a Third Party, all use of Company Data by the Third Party is governed by the contractual obligations between the Third Party and Company. Therefore, when Company instruments the Platform to transfer Company Data to a Third Party, the Third Party use of Company Data is not governed by this Agreement.
    5. Retention of Company Data. Unless Company instructs Kochava otherwise, Kochava retains all Install Data and Post-Install Event Data in perpetuity. Kochava retains Row Level Click Data for ninety days; however, if Company uses Kochava Intelligence Platform, as further described on Exhibit A (Definitions), Kochava will retain Row Level Click Data in perpetuity until Company instructs Kochava otherwise. Kochava retains SAN Campaign Data for one hundred eighty days. Kochava retains Impression Data for twenty-four hours.
    6. Extraction & Deletion of Company Data. To the extent Company Data is retained by Kochava in accordance with Section 2.5 (Retention Of Company Data), Company may extract or delete its Company Data from the Platform during the Term or within thirty days following the termination or expiration of this Agreement. In the event Company is unable to extract or delete its Company Data through no fault of Company, Kochava will provide Company with reasonable assistance to effectuate the extraction or deletion.
  3. Confidential Information
    1. Confidential Information. Confidential Information means any nonpublic information or material pertaining to a Party’s business, whether or not marked “proprietary” or “confidential.” Confidential Information includes, without limitation, Company Data, the Platform, this Agreement and its terms, all business processes and technical information, and all other information or material the receiving Party would reasonably understand to be confidential.
    2. Non-Disclosure. The Parties shall only use or disclose Confidential Information on a need-to-know basis for the limited purposes of performing their obligations under this Agreement, using the Platform, or exercising their rights granted hereunder. If either Party engages the services of a Third Party relating to such performance, use, or rights, then the Party shall require the Third Party to be bound by a non-disclosure agreement of equal or greater force than that required of the Parties under this Agreement.
    3. Non-Confidential Information. For purposes of this Agreement, Confidential Information does not include information that: (i) enters the public domain (other than as a result of a breach of this Agreement); (ii) was in the receiving Party’s possession prior to its receipt from the disclosing Party; (iii) is independently developed by or on behalf of the receiving Party without the use of or reference to the disclosing Party’s Confidential Information; (iv) is obtained by the receiving Party from a Third Party under no obligation of confidentiality to the disclosing Party; or (v) is derived from aggregated, anonymized, and de-identified Row-Level Click Data. The confidentiality obligations set forth in this Section 3.0 shall continue for three years following termination or expiration of this Agreement.
    4. Ownership. All Confidential Information is, and will remain, the property of the disclosing Party, and no license or other rights to the disclosing Party’s Confidential Information is granted or implied hereunder.
    5. Compelled Disclosure. The Parties may disclose Confidential Information in response to a judicial or governmental requirement or order, provided that (i) the receiving Party has given the disclosing Party reasonable prior notice of such requirement or order to give the disclosing Party a reasonable opportunity to object or to seek a protective order or other appropriate remedy, (ii) the receiving Party reasonably cooperates with the disclosing Party so that it may object or seek a protective order or other appropriate remedy, and (iii) the receiving Party in any event discloses only that portion of the Confidential Information that it is legally required to disclose.
    6. Injunctive Relief. The receiving Party acknowledges that disclosure of any Confidential Information by it or its employees or subcontractors will give rise to irreparable injury to the disclosing Party or the owner of such information, and cannot be adequately compensated by damages. Accordingly, the disclosing Party will be entitled to equitable relief, including injunctive relief and specific performance against the breach or threatened breach of the undertakings in this Section 3.0, in addition to any other legal remedies which may be available.
  4. Privacy
    1. Privacy Policy. Company, not Kochava, determines the types of Company Data it processes. Because Kochava only processes the Company Data that Company instruments the Platform to process, any access or use of Company Data by Kochava is incidental to its performance under this Agreement. For further details, refer to the Kochava Privacy Policy, located online at www.kochava.com/support/privacy/.
    2. Privacy Shield. As a certified participant in the EU-U.S. Privacy Shield, Kochava adheres to the framework and principles of the EU-U.S. Privacy Shield with regard to its use of End User data belonging to citizens of a European Union member country. See www.privacyshield.gov/list for details regarding certification. In accordance with Section 8.4 (Company Warranties), Company agrees to adhere to the framework and principles of the EU-U.S. Privacy Shield with regard to its use of End User data belonging to citizens of a European Union member country.
  5. Fees & Payment
    1. Fees & Payment. Company shall make payment to Kochava based upon the pricing tier selected on the Pricing Guide. Company shall submit a true and accurate Company credit card number to Kochava during the online account registration process. Upon Company completing its account registration, Kochava will charge the Company credit card for the current month’s Monthly Minimum Amount on a pro-rated basis. Thereafter, by the tenth of each month, Kochava will charge the Company credit card for the fees incurred by Company during the previous calendar month. If Company fails to render payment in full at the time Kochava charges the Company credit card (“Due Date”), Kochava will notify the Company representative who signed this Agreement. If any amount remains unpaid thirty days following the Due Date, then Company grants Kochava a perpetual, irrevocable, royalty-free, fully-paid, unrestricted license to use the Company Data. Notwithstanding the foregoing, Company remains liable for all outstanding amounts until they are paid in full and Kochava reserves the right to seek payment without limitation.
    2. Ongoing Liability. Notwithstanding any cessation of Company use of the Platform, Company remains liable, and Kochava shall continue to charge Company, for all fees set forth on the Pricing Guide unless Company provides notice of termination pursuant to Section 6.0 (Term & Termination).
    3. Access Suspension. Without limiting this Section 5.0, Kochava may suspend Company access to the Platform during such time that any amount remains unpaid following its Due Date (“Suspension Period”). Kochava may, in its sole discretion, continue to perform the services during the Suspension Period. Notwithstanding the foregoing, Company will continue to incur the fees set forth on the Pricing Guide during the Suspension Period. Following receipt of payment in full, Kochava may, in its sole discretion, reinstate Company access to the Platform or terminate this Agreement pursuant to Section 6.3 (Termination For Cause).
    4. Taxes. Each Party is responsible for taxes based on its net income or gross receipts. Company is responsible for all sales, use, excise, and any other taxes derived from the fees set forth the Pricing Guide.
  6. Term & Termination
    1. Term. If Company selects the “Basic” Tier, as shown on the Pricing Guide, this Agreement begins on the Effective Date and continues on a month-to-month basis thereafter, unless otherwise terminated as provided herein. Otherwise, this Agreement begins on the Effective Date and continues in effect for a period of one year (“Initial Term”) and automatically renews on a month-to-month basis thereafter (“Monthly Term”), unless otherwise terminated as provided herein. Company’s one-year commitment during the Initial Term, in conjunction with its chosen Monthly Minimum Fee, provides Company with reduced transaction fee rates, as illustrated on the Pricing Guide. Either Party may terminate this Agreement upon the expiration of the Initial Term by providing the non-terminating Party with advance, written notice of termination no fewer than thirty days prior to the expiration of the Initial Term. Either Party may terminate this Agreement during the Monthly Term with thirty days’ written notice to the non-terminating Party. The Initial Term and the Renewal Term (if any) are herein referred to collectively as the “Term.”
    2. Upgrades & Pricing Changes. Company may upgrade its Tier at any time upon request; however, Company may not downgrade its Tier during the Initial Period. Kochava reserves the right to change the pricing as shown on the Pricing Guide upon or following expiration of the Term with thirty days’ written notice to Company.
    3. Termination for Cause. Without limiting Section 5.3 (Access Suspension) or Section 1.7 (Reservation Of Rights), either Party may terminate this Agreement if the other Party breaches any material provision of this Agreement and has not cured the breach within thirty days following its receipt of written notice of the breach from the non-breaching Party. If Company provides notice of termination pursuant to this Section 6.2, Kochava shall continue to provide Company with access to and use of the Platform until termination is effective. If Kochava provides notice of termination pursuant to this Section 6.2 during the Term, then Company is liable for the fees set forth on the Pricing Guide throughout the remainder of the Term, which include, but are not limited to, the Monthly Minimum Fee.
    4. Termination without Cause. If Company terminates this Agreement without cause during the Term, then Company is liable for the fees set forth on the Pricing Guide throughout the remainder of the Term, which include, but are not limited to, the Monthly Minimum Fee.
    5. Other Termination Rights. Either Party may terminate this Agreement during the Term with thirty days’ written notice to the other Party if at any time the other Party: (i) becomes insolvent; (ii) is voluntarily or involuntarily named in a filing for bankruptcy; (iii) undergoes any assignment for the benefit of creditors; or (iv) undergoes dissolution. Upon termination under this Section 6.5, Company shall pay Kochava all fees Company incurred up to the effective date of termination or expiration.
    6. Refunds. In the event Company terminates this Agreement pursuant to Section 6.3 (Termination For Cause) or Section 6.5 (Other Termination Rights), Company will be entitled to a pro rata refund of the payments made for services it did not receive, if any.
    7. SDK Removal. Immediately upon termination, Company shall remove the SDK from all of its applications. So long as the SDK remains in any Company applications following termination, Company shall pay, and remains liable for, the fees set forth on the Pricing Guide, including, but not limited to, the Monthly Minimum Fee, for one month following the removal of the SDK from Company application(s).
    8. Effect on Company Materials and Company Data. Without limiting Section 5.1 (Fees & Payment), upon expiration or termination of this Agreement, Kochava will return or destroy Company Materials in accordance with Section 2.2 (Company Materials) and, when applicable, assist Company in extracting or deleting Company Data in accordance with Section 2.6 (Extraction & Deletion Of Company Data).
    9. Survival. The definitions contained herein and Sections 2.0, 3.0, 5.0, 6.7, 6.8, 6.9, 8.0, 9.0, 10.0, 11.0, and Exhibit A (Definitions) survive the expiration or termination of this Agreement.
  7. Information Security
    1. Information Security Management System. Kochava adheres to ISO/IEC 27001 standards, which encompasses security practices throughout all levels of the Kochava organization. Detailed information regarding ISO/IEC 27001 standards may be found by visiting the ISO.org website at http://www.iso.org/iso/home/store/catalogue_ics.htm.
    2. Data Security In-Transit/At-Rest. Kochava employs industry standard encryption and authentication technologies, such as SSL/TLS and SSH, to protect data while it is in transit over public networks. Kochava employs industry standard encryption technology to protect data while it is at rest on Third Party systems (e.g. Google Cloud services) and industry standard firewall technology to protect data while it is at rest on its own systems.
    3. Data Center Security. Kochava processes and stores data on servers located in the United States. Google Cloud services provides all of public-facing Kochava data ingestion points and public web services. All data processing and storage occurs within high security data centers that are, at a minimum, certified SSAE16 Type II SOC 2. Additional information regarding Kochava data center security standards and statements may be found by visiting the following websites: www.tierpoint.com/resources/compliance and https://cloud.google.com/security.
    4. Backups. If Company utilizes Kochava Intelligence services, as further described on Exhibit A (Definitions), then Kochava will store an unmodified copy of all data at the moment of ingestion in a secure offsite facility (e.g. Google BigQuery). Kochava otherwise retains multiple redundant copies of data in its production facilities on physically separate servers.
    5. Risk Assessment. Kochava conducts ongoing internal security audits of all aspects of its organization. Kochava completes an audit of each aspect of the organization, including its physical security, network security, and security policies and procedures, at least once per quarter. Kochava also contracts with an independent Third Party to audit its compliance and perform security tests on its physical and logical systems on an annual basis.
    6. Personally Identifiable Information. The Platform is not intended to collect or handle Personally Identifiable Information. By default, the Platform is engineered to anonymize data during ingestion to render it non-personally identifying.
  8. Representations; Warranties; Disclaimer
    1. Kochava Representations. Kochava represents that: (i) Kochava has the authority to enter into this Agreement, to carry out its obligations under this Agreement, and to grant the rights and licenses granted in this Agreement to Company; (ii) Company is not obligated to secure separate or independent licenses to any materials from any Third Party in connection with the services as provided by Kochava; (iii) the Platform, and the use thereof, does not infringe, violate, or misappropriate any confidentiality obligation or intellectual property rights of any person or entity; and (iv) the Platform conforms in all material respects with the descriptions as provided on Exhibit A (Definitions) and those descriptions sufficiently describe the features and functionalities of the Platform; and (iv) Kochava complies with all applicable federal, state, and local laws.
    2. Kochava Warranties. Kochava warrants that: (i) Kochava will, in the performance of this Agreement, comply with all applicable federal, state, and local laws; (ii) the Platform will operate and function on an uptime basis in all material respects at the level specified in Section 1.5 (Service Levels); and (iii) the Platform will not contain spyware, viruses, or any other malicious code.
    3. Company Representations. Company represents that: (i) Company has the authority to enter into this Agreement and to carry out its obligations under this Agreement; and (ii) Company complies with all applicable federal, state, and local laws.
    4. Company Warranties. Company warrants that: (i) Company will limit its use of the Platform pursuant to Section 1.6 (Prohibited Activities); (ii) Company will comply with all applicable federal, state, and local laws throughout the course of its use of the Platform; (iii) if any Company products or services target children, then Company will not use the Platform to process any personally identifying information of children, as defined by, and pursuant to, the Children’s Online Privacy Protection Act of 1998; (iv) if Company purchases media on Facebook in conjunction with the Platform, then Company will be in compliance with the Facebook terms of use and privacy policy; and (v) Company will adhere to the framework and principles of the EU-U.S. Privacy Shield throughout the course of its use of the Platform if Company uses the Platform to process any End User data belonging to a citizen of a European Union member country.
    5. Disclaimer of Warranties. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, EACH PARTY HERETO DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR USAGE OF TRADE.
  9. Indemnification
    1. Indemnification by Kochava. Kochava shall indemnify, defend at its own cost and expense, and hold Company and its parent, subsidiaries, and their respective officers, directors, employees, and agents harmless from and against any Third Party action, suit, demand, judgment, settlement, loss, cost, expense (including reasonable attorneys’ fees and expenses), damage, liability, claim, or proceeding, whether fixed or contingent, and whether or not adjudicated (each an “Action”), on the condition that: (i) Company is not in breach of any warranty under this Agreement, (ii) Company gives Kochava sole control of the defense and settlement of the Action, (iii) Company provides Kochava with all reasonable assistance, at the expense of Kochava, and (iv) the Action arises out of or relates to (a) the performance or nonperformance of the services under this Agreement by Kochava, (b) a breach or default of any of the Kochava representations, warranties, obligations, or covenants set forth in this Agreement, or (c) a claim or allegation that the Platform or use by Company thereof violates, misappropriates, or infringes any Third Party intellectual property right.
    2. Indemnification by Company. Company shall indemnify, defend at its own cost and expense, and hold harmless Kochava and its respective officers, directors, shareholders, employees, and agents from and against any Action, on the condition that: (i) Kochava is not in breach of any warranty under this Agreement, (ii) Kochava gives Company sole control of the defense and settlement of the Action, (iii) Kochava provides Company with all reasonable assistance, at the expense of Company, and (iv) the Action arises out of or relates to (a) a breach or default of any Company representations, warranties, obligations, or covenants set forth in this Agreement, (b) a violation by Company of any applicable governmental, administrative, or judicial law, rule, or regulation, or (c) infringement, misappropriation, or other violation of any intellectual property rights in connection with Company Data.
  10. Limitation Of Liability
    1. No Guarantee. Kochava does not guarantee: (i) any particular outcome as a result of the use of the Platform; (ii) the Platform will meet all expectations of Company; or (iii) the Platform will be entirely error-free.
    2. Limitations. WITH THE EXCEPTION OF A PARTY’S INDEMNIFICATION AND DEFENSE OBLIGATIONS UNDER Section 9.0 (Indemnification) AND LIABILITY AND DAMAGES ARISING OUT OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, NO PARTY HERETO SHALL BE LIABLE FOR ANY CONSEQUENTIAL, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, HOWEVER ARISING.
    3. Aggregate Liability Limitation. If the limitations and exclusions specified in Section 10.2 (Limitations) are unenforceable, then a Party’s aggregate liability to the other Party shall not exceed the amounts, if any, actually paid by Company to Kochava in the three-month period prior to the event giving rise to the liability.
  11. General
    1. Governing Law. To the fullest extent permitted by law, this Agreement is governed by and construed in accordance with the laws of the State of California, USA, without regard to its conflicts of law principles or provisions.
    2. Dispute Resolution. Any dispute, controversy, or claim arising from, or in connection with, this Agreement shall be submitted to binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. Arbitration shall be conducted in Spokane, Washington. The arbitration shall be finally determined by one arbitrator and judgment on the award rendered may be entered in any court having jurisdiction thereof. Without limiting the foregoing, in the event of a breach of this Agreement by Company, Kochava may seek injunctive relief or a temporary restraining order in any court of competent jurisdiction without first resorting to arbitration if Kochava deems in good faith that such a remedy is necessary.
    3. Dispute Limitation. With the exception of a claim relating to Section 5.1 (Fees & Payment), any claim or cause of action arising from, or in connection with, this Agreement or the use of the Platform must be filed within one year after such claim or cause of action arose or it is forever barred.
    4. Relationship between the Parties. Company acknowledges and agrees that Kochava, and its employees, agents, and contractors, are independent contractors, rather than agents or employees of Company. Nothing herein shall be deemed to create an employment, joint venture, agency, or partnership relationship between the Parties. The Parties are prohibited from acting toward any Third Party, individual entity, or the public in any manner that may indicate a relationship to the contrary.
    5. Assignment. Company is prohibited from assigning this Agreement, in whole or in part, without the prior written consent of Kochava. Any attempt to assign this Agreement without prior written consent from Kochava is void. A sale or transfer of a majority of Company assets, capital stock (if a corporation), partnership interests (if a partnership), or membership interests (if a limited liability company), or a merger or consolidation, in any case resulting in the transfer of voting control shall be deemed an assignment of this Agreement requiring the prior consent of Kochava.
    6. Notices. Notwithstanding Section 5.0 (Fees & Payment), the Parties shall deliver all required notices or communications under this Agreement to the physical or electronic address shown below. Notices and communications are deemed delivered to the receiving Party on the date sent by the sending Party. For purposes of this Agreement, an electronic communication has the same force and effect as a signed, physical writing. Company may change its physical or electronic address for purposes of notice under this Section 11.6 upon providing Kochava with a completed Change of Address Form.

      Notices to Kochava:
      Kochava, Inc.
      201 Church Street
      Sandpoint, ID 83864
      Attention: Doug Lieuallen
      Email: dlieuallen@kochava.com

      Notices to Company: shall be sent to the contact and address provided by the Company representative who signed this Agreement.

    7. Modification of Agreement. This Agreement shall not be modified or waived in the absence of a signed writing by the Parties which references this Agreement.
    8. Force Majeure. Kochava shall not be liable under this Agreement by reason of any failure or delay in the performance of its obligations to Company if such failure or delay arises on account of events beyond the reasonable control of Kochava. Such events include, but are not limited to, strikes, riots, war, acts of terrorism, acts of God, fire, explosion, flood, telecommunications, internet, or network failure, results of vandalism or computer hacking, national emergencies, and acts of government or governmental agencies or instrumentalities.
    9. Publicity. During the Term, Kochava may, with prior Company consent, publish a case study regarding Company use of the Platform. Furthermore, during the Term, Kochava may use the Company name and logo for the limited purpose of promoting the Platform. Kochava may use feedback regarding Company use of the Platform received from Company for the limited purpose of promoting the Platform.
    10. Headings. The section headings in this Agreement do not define or limit the scope of their associated provisions.
    11. Entire Agreement; Counterparts. This Agreement, together with Exhibit A (Definitions) and the Pricing Guide, constitutes the complete agreement between the Parties and supersedes all prior and/or contemporaneous written or oral agreements, conditions, or understandings between the Parties, including the Terms of Use found on kochava.com. The terms and conditions of this Agreement supersede all conflicting terms or conditions included in any invoice, ordering document, insertion order, purchase order, or transaction document. This Agreement, and any Addenda attached hereto, may be executed in counterparts, each of which shall be deemed an original, and both of which, when taken together, shall constitute one and the same instrument.
    12. Severability. If a court of competent jurisdiction, or an arbiter pursuant Section 11.2 (Dispute Resolution), holds or deems any provision of this Agreement to be invalid or unenforceable, then that provision shall be deemed to have been deleted from this Agreement, while the remaining provisions of this Agreement shall remain in full force and effect according to its terms.
    13. Waiver. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy. No waiver of any provision of this Agreement is effective unless in writing and signed by both Parties. Any waiver by a Party of any provision of this Agreement shall not be construed as a waiver of any other provision of this Agreement, nor shall such waiver operate or be construed as a waiver of any future event or circumstance.
    14. Incorporation of Pricing Guide. Each reference to the “Agreement” includes the Pricing Guide.

This Agreement was last updated on October 27, 2016.

Exhibit A Definitions

Agreement Duration is the minimum length of time from the Effective Date that this Agreement is in full force and effect.

Attributed Installs are calculated every time the Platform reconciles an installation of a Company app to an originating Click.

Clicks are calculated every time the Platform tracks an End User click on a Company ad.

Company Data means all electronic information and data processed by the Platform via software development kits or server-to-server on behalf of and relating to Company.

Company Materials means, collectively, all documentation and materials furnished or made accessible by Company to Kochava, whether in oral or written form, and all Company-owned or licensed trademarks, service marks, and logos.

Confidential Information has the meaning provided in Section 3.1.

Daily Active Users is the number of End Users who interact with a Company app.

Data Science Reports are Company-specific reports relating to fraud-detection and TV lift-attribution.

Dedicated Account Management, if included, means Company is eligible for POD support, as defined in Section 1.4 (Support).

Effective Date has the meaning provided in the introductory paragraph of this Agreement.

Impression Data means the information the Platform tracks relating to the occurrence of a Network serving a Company ad.

Impressions occur every time a Company ad is served by a Network.

Install Data means the information the Platform tracks relating to the occurrence of a Company app installation onto an End User device.

Kochava Intelligence is the suite of Platform features that includes Query and What-If?.

Marks means collectively, the trademarks, service marks, and logos on the Site or used in connection with the Platform.

Monthly Minimum Fee means the minimum amount Company is obligated to pay each month to Kochava throughout the Term pursuant to the Tier of service Company selected, as provided on the Pricing Guide.

Network means an entity that serves ads on behalf of Company.

Non-Attributed Installs are calculated every time the Platform tracks an installation of a Company app that is not reconciled to an originating Click.

Optimization Beacon Impressions are calculated every time the Platform tracks an Impression to inform the optimization beacon engine.

Personally Identifiable Information means information like name or email address that can by itself be used to contact or identify an individual person.

Platform means the Site and all related software development kits.

Post-Install Event Data means the Company-instrumented information which the Platform tracks relating to the events that occur on an End User device after installation of a Company app. Post-Install Events are calculated every time the Platform tracks an interaction between an End User and a Company app after installation of the app, whether the install originated from an Attributed Install or Non-Attributed Install.

Query. Each element comprising the Transaction Range incurs a fee based on the total Transaction Range stored by Kochava on behalf of Company.

Row-Level Click Data means the Company-instrumented information which the Platform tracks relating to the occurrence of an End User click on a Company ad.

SAN Campaign Data means the information the Platform tracks relating to a Company self-attributing network ad campaign.

SAN Installs are calculated every time the Platform tracks an installation of a Company app that is reconciled to a self-attributing network.

SAN means self-attributing network. A SAN is a large Network with high-value traffic, such as Facebook, Twitter, and Google. When Company runs an ad on a SAN, Kochava processes and delivers a postback feed to the SAN of all Company app installs for purposes of reconciling the originating click.

Scenario Slot, as relating to What-If?, is a replication of Company app production, with customized attribution setting modifications (e.g. lookback windows, removal of a Network partner, etc.).

Session Tracking is the Platform’s measurement of instances in which an End User launches a Company app and the duration of time the app remains opened. This Platform feature does not include device-level information. If Company runs the Platform on a server-to-server basis, instead of via the SDK, Session Tracking is not free and is charged as a Post-Install Event.

Site means the web-based platform provided by Kochava at kochava.com, through which Kochava renders attribution, analytics, and related modeling and reporting services, the content thereon, and the Platform descriptions herein.

Term has the meaning provided in Section 6.1.

The Collective, based upon Company’s predefined search criteria, is calculated every time the Platform identifies a device ID from within a participating Network’s device pool and pairs Company with Network.

Third Party means any entity or person who is not a party to this Agreement, but who may be affected by it.

Tier means the pricing category, as of the Effective Date and as provided on the Pricing Guide, under which Kochava has granted Company access to and use of the Platform.

Traffic Verifier is calculated every time the Platform tracks an Impression, Click, or Install for a tracker containing an applicable traffic verification rule.

Transaction Range, as relating to Kochava Intelligence, is the sum of the following elements: Impressions, Clicks, Attributed Installs, Post-Install Events, and SAN Installs.

View Through Attribution is calculated every time the Platform reconciles an Impression to an Attributed Install that occurred within a Company-defined look-back window.

What-If? is calculated on a per Scenario Slot basis.

For additional definitions relating to the Platform, refer to the Kochava Glossary at https://support.kochava.com/reference-information/glossary.

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