Your use of the Collective, defined below, is governed by this Terms of Service (“Agreement”).  This Agreement is the contractual agreement between Kochava Inc., a Delaware corporation (“Kochava”), and the entity upon whose behalf you are binding to the terms of this Agreement (“Marketer”).  This Agreement is effective as of the date Marketer first accesses the Collective (“Effective Date”).  Kochava and You may be referred to herein collectively as the “Parties” and individually as a “Party.”

By accessing or using the Collective, Marketer agrees to be bound by this Agreement and all terms and conditions incorporated by reference.

 

Background

The Kochava Collective is a marketplace of mobile audience data, as provided at www.kochava.com/kochava-collective (the “Collective”).  Kochava populates the Collective with audience data derived from third-party suppliers and from its proprietary Free App Analytics service. Marketers purchase desired audience segments from within the Collective and run media on integrated ad networks (“Activation Partners”) targeting those segments.  Kochava populates the Collective with audience data derived from third-party suppliers and from its proprietary Free App Analytics service.

 

WHEREAS, Marketer desires to access and use the Collective with the intent to purchase audience segments;

 

WHEREAS, Kochava desires to provide Marketer with access to the Collective and facilitate the sale of audience segments to Marketer;

 

BY ACCESSING THE COLLECTIVE, MARKETER AGREES TO THE FOLLOWING:

1. Scope Of Services

  1. Access. Kochava hereby grants a limited, non-exclusive, non-transferable, revocable license to Marketer to access and use the Collective during the Term (as defined in Section 4.1), subject to the limitations of this Agreement.
  2. Account Registration. Marketer must be registered with Kochava in order to use the Collective. Marketer agrees to use commercially reasonable efforts to maintain true, accurate, current, and complete account information. Marketer 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 Collective. Kochava may from time to time modify, remove features from, or upgrade the Collective. “Third Party” as used hereunder means any entity or person who is not a party to this Agreement, but who may be affected by it.  Marketer acknowledges that Kochava is not liable to Marketer or any Third Party for any modification made to the Collective.
  4. Prohibited Activities. Marketer shall not: (i) allow a Third Party to access or use of the Collective without prior authorization from Kochava; (ii) share any documentation, data, or insight derived from its use of the Collective with an unauthorized Third Party; (iii) create, or undertake to create, a product or service that may compete with, or replicate the functionality provided by, the Collective; (iv) assist, or undertake to assist, a Third Party in the creation of a product or service that may compete with, or replicate the functionality provided by, the Collective; (v) use the Collective in any manner that may damage, disable, overburden, or impair the Collective, regardless of foreseeability; (vi) use the Collective in any manner that may give rise to civil or criminal liability or other damages, or using the Collective for an illegal purpose or activity; or (vii) use the Collective for any purpose not contemplated and intended by this Agreement.
  5. Reservation of Rights. Kochava reserves the right to refuse Marketer access to the Collective or to terminate this Agreement if Kochava reasonably determines Marketer engaged in any of the activities described in Section4 (Prohibited Activities). If Kochava terminates this Agreement, then Marketer shall immediately cease using any data which Marketer has activated.
  6. Support. Marketer may receive support by contacting collectivesupport@kochava.com or its Collective account manager if one has been assigned.
  7. Intellectual Property. Kochava is the sole and exclusive owner of the Collective.  “Marks” as used herein means collectively, the trademarks, service marks, and logos on the Collective website or used in connection with the Collective. Kochava owns or licenses the Marks.  The Collective, website, and Marks are protected by applicable intellectual property and other laws.  Kochava reserves all rights, title, and interest in the Collective, website, and Marks, and its intellectual property rights not expressly granted under this Agreement.

 

2. Ownership 

  1. Marketer Data. All data uploaded to the Collective by Marketer (“Marketer Data”) is the exclusive property of Marketer.  Kochava expressly disclaims any ownership in Marketer Data. Marketer grants Kochava a limited, non-exclusive, non-transferable, revocable license to use Marketer Data to provide Marketer modeling services for Marketer’s exclusive benefit.  Kochava shall not contribute or otherwise place Marketer Data into the Collective data set or allow any Third Party to have access to, or use of, Marketer Data.  Marketer acknowledges and agrees that Kochava necessarily must share Marketer Data with Marketer’s Activation Partners to carry out Marketer’s audience/campaign efforts.
  2. Collective Data. All data residing in the Collective (“Collective Data”) is the exclusive property of Kochava.  Marketer expressly disclaims any ownership in Collective Kochava grants Marketer a limited, non-exclusive, non-transferable, revocable license and right to use Collective Data for activated media campaigns running with Activation Partners.

 

3. Pricing & Payment 

  1. Pricing. Pricing is determined “Per Deliverable,” meaning Marketer agrees to pay the rate specified for each audience segment it activates.
  2. Either Kochava or Activation Partner (but not both) shall invoice Marketer on a monthly basis in accordance with the Per Deliverable price multiplied by the reported Delivery.  “Delivery” is the volume of deliverables, as reported by Kochava.  Kochava may rely on reporting from Activation Partners to calculate the Delivery.  In the absence of such reporting from an Activation Partner, Kochava calculates invoices based on the Cost Per Deliverable pricing provided on the associated insertion order.  Marketer agrees to pay all invoices when due (“Due Date”).  If billed by Kochava, the Due Date is seven (7) days from date of invoice issuance.  If billed by Activation Partner, the Due Date is the negotiated date as between Marketer and Activation Partner.
  3. Access Suspension. Kochava may suspend Marketer access to the Collective during such time that an invoice remains unpaid following its Due Date. Following receipt of payment in full, Kochava may, in its sole discretion, reinstate Marketer access to the Collective or terminate this Agreement.

 

4. Term & Termination 

  1. Term. This Agreement begins on the Effective Date and continues until terminated as provided herein (“Term”).
  2. Termination for Convenience. Either Party may immediately terminate this Agreement for any or no reason by providing the non-terminating Party written notice of termination.
  3. Refunds. In no event will Marketer be entitled to a refund of any kind prior to or following termination.
  4. Survival. The definitions contained herein and Sections 3.0, 4.0, 5.0, 6.0, 7.0, 8.0 survive the expiration or termination of this Agreement.

 

5. Representations; Warranties; Disclaimer 

  1. Kochava Representations. Kochava represents that: (i) it 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 Marketer; (ii) the Collective, and the use thereof, does not infringe, violate, or misappropriate any confidentiality obligation or intellectual property rights of any person or entity; (iii) Kochava complies with applicable federal, state, and local laws.
  2. Kochava Warranties. Kochava warrants that: (i) it will, in the performance of this Agreement, comply with applicable federal, state, and local laws; (ii) the Collective will not contain spyware, viruses, or any other malicious code.
  3. Marketer Representations. Marketer represents that it: (i) has the authority to enter into this Agreement and to carry out its obligations under this Agreement; and (ii) complies with all applicable federal, state, and local laws.
  4. Marketer Warranties. Marketer warrants that: (i) it will limit its use of the Collective pursuant to Section 1.4 (Prohibited Activities); (ii) it will comply with all applicable federal, state, and local laws throughout the course of its use of the Collective; (iii) if any Marketer products or services target children, then Marketer will only target children in conformance with the regulations set forth in the Children’s Online Privacy Protection Act of 1998; (iv) if Marketer purchases media on Facebook in conjunction with the Collective, then Marketer will be in compliance with the Facebook terms of use and privacy policy; and (v) Marketer will adhere to the framework and principles of the EU-U.S. Privacy Shield throughout the course of its use of the Collective if Marketer uses the Collective to target any end user who is 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.

 

6. Indemnification  

  1. Mutual Indemnification. Each Party (the “Indemnitor”) shall indemnify, defend at its own cost and expense, and hold the other Party and its parent, subsidiaries, and their respective officers, directors, employees, and agents (collectively, “Indemnitee”) 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) Indemnitee gives Indemnitor sole control of the defense and settlement of the Action, (ii) Indemnitee provides Indemnitor with all reasonable assistance, at Indemnitor’s expense, and (iii) the Action arises out of or relates to (a) the performance or nonperformance of Indemnitor’s obligations under this Agreement, (b) a material breach or default of Indemnitor’s representations, warranties, or covenants under this Agreement, or (c) an intellectual property rights infringement or misappropriation in connection with (if Marketer is Indemnitor) Marketer Data or (if Kochava is Indemnitor) the Collective.

 

7. Limitation Of Liability

  1. No Guarantee. Kochava does not guarantee: (i) any particular outcome as a result of the use of the Collective; (ii) the Collective will meet all expectations of Marketer; or (iii) the Collective will be entirely error-free.
  2. Limitations. WITH THE EXCEPTION OF A PARTY’S INDEMNIFICATION AND DEFENSE OBLIGATIONS UNDER Section 6.0 (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 7.2 (Limitations) are unenforceable, then a Party’s aggregate liability to the other Party shall not exceed the amounts, if any, actually paid by Marketer to Kochava in the three-month period prior to the event giving rise to the liability.

 

8. 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. The Parties shall submit all disputes, controversies, or claims arising out of or relating to this Agreement to binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules in Spokane, Washington. One arbitrator shall finally determine the arbitration, and judgment on the award rendered may be entered in any court having jurisdiction thereof.
  3. Dispute Limitation. With the exception of a claim relating to Section 3.2 (Invoicing), the Parties must file any claim arising out of or relating to this Agreement or the use of the Collective within one year after the event giving rise to it, or the claim is forever barred.
  4. Severability. If a court of competent jurisdiction or an arbiter holds or deems any provision of this Agreement to be invalid or unenforceable, then that provision is deemed to have been deleted from this Agreement, while the remaining provisions of this Agreement remain in full force according to its terms.
  5. Relationship between the Parties. The Parties acknowledge and agree that their employees, agents, and contractors, are independent contractors, rather than agents or employees of the other Party. Nothing herein creates an employment, joint venture, agency, or partnership relationship between the Parties.
  6. Assignment. Except as a result of a sale or transfer of a Party’s voting control, neither Party may, without the prior written consent of the other Party, whose consent shall not be unreasonably withheld: (i) assign this Agreement, (ii) assign any of its underlying rights, or (iii) delegate any of its underlying duties. Any assignment or delegation in the absence of the other Party’s prior written consent is void.
  7. Modification & Waiver. Kochava reserves the right to modify or update this Agreement at any time without notice.  At all times, Kochava shall post the most recent Terms of Service at https://www.kochava.com/the-collective-advertiser-terms/ No failure or delay by either Party in exercising any right, power, or remedy under this Agreement operates as a waiver of any such right, power, or remedy.  A waiver of one provision is not a waiver of any other provision.  A waiver does not operate as a waiver of any future event.
  8. Headings; Integration; Counterparts. The section headings in this Agreement do not define or limit the scope of their associated provisions. This Agreement constitutes the complete agreement between the Parties and supersedes all prior or contemporaneous written or oral agreements, conditions, or understandings between the Parties. The terms and conditions of this Agreement supersede all conflicting terms or conditions included in any invoice or ordering document. This Agreement may be executed in counterparts, each of which is deemed an original, and both of which, when taken together, constitutes one and the same instrument.
  9. Force Majeure. If a Party delays or fails to perform its obligations under this Agreement as a result of events beyond the Party’s reasonable control, then the Party is not liable to the other Party for the delay or failure. Such events include, without limitation, acts of God, fire, explosion, flood, internet, network, or telecommunications failure, vandalism or computer hacking, strikes, national emergencies, terrorism, and governmental acts.
  10. Notices. The Parties shall deliver all required notices or communications under this Agreement to the recipient’s most recent published address on its website. 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.

 

This Terms of Service was last updated on January 19, 2018.