Inneractive General Terms

These Inneractive General Terms (“Terms”) apply to your usage of the Services (as defined herein). If you have entered a Supply Partner Agreement with Inneractive Ltd. (“Inneractive”, “we” or “us”) regarding your use of the Services (“Agreement”), then these Terms also serve as an Appendix to such agreement and constitute an integral part thereof. Except with respect to the Data Processing Agreement (attached) and Inneractive’s share of your Confidential Information with its Affiliates, in any conflict between these Terms any Supply Partner Agreement, the terms of the Supply Partner Agreement shall prevail.

Before using the Inneractive’s Services, including the Revenue Desk (as such terms are defined herein below), we ask that you read these Terms carefully, as by using and/or accessing the Services, you hereby agree and accept these Terms in full. We recommend that you print out or save a local copy of these Terms for your records. Capitalized terms in these Terms will have the meaning ascribed to it in Appendix A attached hereto.

IF YOU DO NOT ACCEPT THESE TERMS IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICES. IF YOU ARE AN INDIVIDUAL WHO CONSENT TO THESE TERMS ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THESE TERMS AND YOUR CONSENT TO THESE TERMS WILL BE TREATED AS THE CONSENT OF THE BUSINESS. IN THAT EVENT, “BUSINESS”, “YOU” OR “YOUR” WILL REFER AND APPLY TO THAT BUSINESS. YOU ALSO CONSENT TO THE USE OF: (A) ELECTRONIC MEANS TO CONSENT TO AND COMPLETE THESE TERMS AND TO PROVIDE YOU WITH ANY NOTICES GIVEN PURSUANT TO THESE TERMS; AND (B) ELECTRONIC RECORDS TO STORE INFORMATION RELATED TO THESE TERMS AND YOUR USE OF THE SERVICES. FROM TIME TO TIME WE MAY CHANGE THESE TERMS. WE WILL MAKE REASONABLE COMMERCIAL EFFORTS TO NOTIFY YOU OF ANY UPDATES TO THESE TERMS BY MAKING SUCH UPDATES AVAILABLE ON OUR WEBSITE AND.OR THE INNERACTIVE REVENUE DESK. NOTWITHSTANDING THE FOREGOING, YOUR CONTINUED USE OF THE SERVICES WILL BE DEEMED ACCEPTANCE TO AMENDED OR UPDATED TERMS.

 

1. SCOPE OF SERVICES; LICENSE

1.1. During the term hereof and subject to your compliance with these Terms, Inneractive will provide you with a license to access and use the Inneractive Exchange, the Inneractive Revenue Desk, SDK or Tag (as may be applicable to you) and other products, services or features available thereto, including advertising management services, such as optimization, ad serving, trafficking, campaign management and the compilation of relevant statistical data to offer your Ad Inventory for sale to Advertisers and enable the display of targeted Ads to your App’s End Users (collectively, the “Services”).

1.2. Inneractive hereby grants you a non-transferable, non-assignable, revocable, non-exclusive, royalty free right and license to: (a) connect to and use the Inneractive Exchange and the Inneractive’s proprietary Software Developer Kit (“SDK”) if applicable to your App integration, solely for the purposes of: (i) selling Ad Inventory on your App(s) to Advertisers; and (ii) allowing Ads provided by Advertisers to be delivered and placed on the App via the SDK or Tag (as applicable); (b) access and use the Inneractive Revenue Desk for the purpose of reviewing your activity on the Inneractive Exchange and (c) access and use Metamarkets (for as long as Inneractive is using such third- party tool) for insights and analytics on the App’s auction behavior (collectively, the “Supply Partner License”).

1.3. You hereby grant Inneractive a non-transferable, non-assignable, perpetual, non-exclusive, royalty free right and license to (a) use the Ad Request, solely: (i) for providing you with the Services; (ii) in accordance with the Data Processing Addendum attached hereto as Appendix B; and (b) enable Advertisers to (i) deliver and place Ads on the App through the Services; and (iii) exchange the Advertiser Data required for providing the Services with Advertisers on your behalf (collectively, the “Inneractive License”).

1.4. No Implied License. Except as expressly provided herein, nothing in these Terms will be construed to confer any ownership interest, license, sale or other rights upon you or Inneractive (as applicable) by implication, estoppel or otherwise as to any Intellectual Property Rights of the other Party or any third party.

1.5. The Inneractive Exchange, Inneractive Revenue Desk, SDK or Tag may include open source software (“OSS”). To the extent so stipulated by the license that governs each OSS (“OSS License“), each such OSS is subject to its respective OSS License, not these Terms. If, and to the extent, an OSS License requires that these Terms effectively impose, or incorporate by reference, certain disclaimers, provisions, prohibitions or restrictions, then such disclaimers, provisions, prohibitions or restrictions shall be deemed to be imposed, or incorporated by reference into these Terms, as required, and shall supersede any conflicting provision of these Terms, solely with respect to the corresponding OSS which is governed by such OSS License. If, and to the extent, an OSS License requires that the source code of the OSS it governs be made available, Inneractive hereby grants a written offer, valid for the period prescribed in such OSS License, to obtain a copy of the source code of the OSS, from Inneractive. To take up this offer, contact Inneractive at legal@inner-active.com.

2. REVENUE SHARE AND PAYMENT.

2.1. As part of the Services, Inneractive will enter into written agreements with the Advertisers in its own name and for its own account. Inneractive will be responsible for invoicing and collection of all amounts from Advertisers for Ads delivered and placed on the App via the Services and will pay you the Supply Partner Share in accordance with the payment terms set forth in Section 2.3 below.

2.2. Unless agreed otherwise in writing, each calendar month of the Term, you will be eligible to receive sixty-five percent (65%) of all Net Revenue (the “Supply Partner Share”) and Inneractive will be eligible to receive thirty-five percent (35%) of all Net Revenue (the “Inneractive Share”). Inneractive will retain the Inneractive Share and will pay you the Publisher Share in USD in accordance with the payment terms set forth herein below.

2.3. Payment Terms. You will be provided with access to an online reporting system via the Inneractive Revenue Desk, through which you will be able to view the estimated Supply Partner Share and will be required to approve, at the end of each calendar month, the updated and final monthly invoice. Inneractive will pay the Supply Partner Share of each respective invoice within sixty (60) days from the end of each calendar month in which Ads were delivered and placed via the Services on the App.

2.4. Each party shall bear its own expenses (including but not limited to any tax obligations) relating to the activities and payments received under these Terms or the Agreement (as applicable). All sums payable under these Terms or the Agreement are exclusive of any applicable tax. Notwithstanding the foregoing, if the total amount payable under this Section 2 do not equals or exceeds two hundred USD ($200), then Inneractive shall have the right to withhold payment to you until the next regularly scheduled payment date on which the amount payable to you equals or exceeds two hundred USD ($200).

2.5. You will not be eligible to receive the Supply Partner Share for actions by you and/or any third party on your behalf that Inneractive determines, in its sole discretion, were associated with any Prohibited Activity and/or Fraudulent Activity. Calculation will be made solely based on Inneractive’s reporting system and statistics calculated through its tracking pixels. Without derogating from any other right or remedy in accordance with any applicable law, Inneractive shall have the right to suspend or deactivate the Services or immediately terminate these Terms or the Agreement (as applicable) in case of any such Prohibited Activity and/or Fraudulent Activity.

2.6. Set-Off. You may not set-off any amount which is due to you from Inneractive from any amount payable by you to Inneractive (if any). You hereby acknowledge and agree that Inneractive will have the right to set-off any and all amounts due to it under these Terms or the Agreement (as applicable), from any amount payable by Inneractive to you (if any).

3. REGISTRATION TO THE INNERACTIVE REVENUE DESK

3.1. Subject to your consent to these Terms, Inneractive will provide you with access to the Inneractive Revenue Desk and Metamarkets.

3.2. During registration to the Inneractive Revenue Desk and Metamarkets, you may choose a username and password with which you shall be able to access your account at the Inneractive Revenue Desk and Metamarkets (the “Account“) and use the Inneractive Revenue Desk and Metamarkets in accordance with your authorizations. You will keep your login details in confident and not share them with or transfer them to any third party. You agree that you are entirely and solely responsible for any and all activities or actions that occur under your Account, whether or not you have authorized such activities or actions. You agree to notify Inneractive in writing of any unauthorized and/or fraudulent use of your Account.

3.3. Inneractive will not be liable for any unavailability or inaccuracy, temporary or otherwise, of any reports, data or information provided via the Inneractive Revenue Desk or Metamarkets.

4. YOUR RESPONSIBILITIES AND UNDERTAKINGS

4.1. You shall be responsible and hereby undertake and agree: (a) to perform, on your own expense, any and all Quality Assurance (QA) testing necessary for successful integration with the Inneractive Exchange; (b) to ensure that your technical contact person will start working on the integration with the Inneractive Exchange immediately following the Effective Date and in accordance with Inneractive’s directions and guidelines; (c) if integrated via the SDK, to provide your assent to the Inneractive’s End-User License Agreement (“EULA”) available at: http://inner-active.com/sdk-eula which is required as part of the SDK installation process; (d) to use commercially reasonable efforts to provide even and consistent distribution of Ads on the App and to immediately inform Inneractive of any of your actions that might increase or reduce expected Ads inventory onto the App; (e) not to attempt to or interfere with or disrupt the Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Services for your own use as permitted herein); (f) to ensure that its inventory specifications and criteria provided to the Inneractive Exchange are true and accurate; (g) not to engage in any Fraudulent Activity and/or Prohibited Activity or allow others to do so; (h) copy, create derivative works of or modify the Services or any part thereof; (i) provide, lease, transfer, sublicense, lend, use for timesharing, or otherwise allow others to use the Services, or any part thereof, except as specifically licensed to you hereunder or under the Agreement; (h) use the Services to compete with Inneractive or to develop similar services to third parties; (j) remove the Inneractive Marks, or any identification, or proprietary or copyright restrictions from the Services or any part thereof; (k) develop methods to enable unauthorized parties to use the Services; (l) conduct your business in a way that reflect poorly on Inneractive and/or the Services or any part thereof; and (m)  promptly notify Inneractive if you suspects that any third party may be conducting or is or might be involved in any Prohibited Activity and/or Fraudulent Activity. You acknowledge and agree that Inneractive may, but is under no obligation to, in its sole discretion, monitor and review (i) impressions, click-through or other actions relating to the Ads placed on the App by Inneractive; and/or (ii) the App’s Content or any policy linked or made available by you thereto.

4.2. You will comply with the Inneractive Supply Content Policy at http://inner-active.com/supply-content-policy/ (the “Content Policy”). Inneractive may immediately suspend the Services provided to you in case of violation of the Content Policy.

4.3. Without limiting any other terms of these Terms, you acknowledge and agree that, at any time during the Term, Inneractive has the right, at its sole discretion (without notice) to: (a) remove Prohibited Activity and/or Fraudulent Activity from the Services; (b) take any action needed to prevent or correct Prohibited Activity; (c) assist any governmental agency or other applicable legal authorities with respect to any Prohibited Activity that was detected by Inneractive; and/or (d) report any Prohibited Activity to any governmental agency or other applicable legal authority with respect to any Prohibited Activity.

4.4. You will not to use the Services to offer, display, distribute, transmit, route, provide connections to or store any Content on your App or any other material that infringes copyrighted works or otherwise violates or promotes the violation of the Intellectual Property Rights of any third party. You bear sole and exclusive responsibility for ensuring the accuracy, adequacy, completeness, authenticity, validity, and legality of the App’s Content.

5. INNERACTIVE’S RESPONSIBILITIES AND UNDERTAKINGS.

5.1. Inneractive will make reasonable commercial efforts (i) to resolve any QA problems that arise in connection with the Inneractive Exchange and cannot be solved and/or be within scope of QA by/of you; and (ii) to ensure that no illegal Ads will be delivered on the App via the Services; (iii) remove an illegal Ad as soon as reasonably possible in the event Inneractive is aware of any illegal Ad delivered on the App via the Services.

5.2. Inneractive will have no responsibility or liability for any content, materials, discounts, rewards, or other deals made available through the Inneractive Exchange by you.

5.3. Inneractive retain the exclusive right in its sole discretion to: (a) determine which features, tools or views, will be available to you, added, removed and/or modified from or via the Services, including from the Inneractive Exchange and the Inneractive Revenue Desk; (b) customize, modify and update the Services, including the Inneractive Exchange and the Inneractive Revenue Desk or any part thereof from time to time without notice; (c) remove any Content, or any part thereof, from the Inneractive Exchange which violates these Terms or the Agreement (if applicable) or require you to do so; and (d) add, change or remove, at any time, any Content, materials and/or functionality made available in the Services, or any part thereof, for any reason and without notice.

6. PROMOTION AND MARKETING

6.1. You will not issue any press release or any other marketing materials regarding these Terms and/or the Agreement (if applicable) without Inneractive’s prior written approval.

6.2. You will not remove nor conceal any Inneractive’s Mark appearing on the Inneractive Revenue Desk, or from any documentation provided to you by Inneractive in connection with the Services. You will not add any other Mark to the same without Inneractive’s prior written consent.

6.3. You agree that Inneractive may identify you (with your name and logo) as a customer of the Inneractive Exchange in its website(s), newsletters, case studies, emails or promotional posts in social media; (In the event that you wish to be excluded from a specific promotion/publication of Inneractive, you may notify Inneractive in writing and Inneractive will cease using your name and logo in such publication. Unless otherwise agreed by Parties, you will not be entitled to any compensation as a result of any such publication.

7. OWNERSHIP OF INTELLECTUAL PROPERTY

7.1. As between you and Inneractive, Inneractive will retain all right, title and interest in and to the Services, including the Inneractive Exchange, the SDK, the Inneractive Revenue Desk, the Inneractive Marks and any and all marketing, promotional materials and documentation provided by Inneractive to you in connection with the Services, and any customization and/or derivatives thereof (whether developed by you or by Inneractive), including any Intellectual Property Rights therein (collectively: “Inneractive’s IP”); and (ii) all use of the Inneractive’s IP shall inure to the benefit of Inneractive and you will not: (y) contest, or assist others to contest, Inneractive’s rights or interests in and to the Inneractive IP or the validity of Inneractive’s rights in and to the Inneractive’s IP and all applications, registrations or other legally recognized interests therein, or (z) seek to register, record, obtain or attempt to pursue any Intellectual Property Rights or other proprietary rights or protections in or to said Inneractive’s All rights in the Inneractive’s IP which are not expressly granted herein are reserved by Inneractive.7.2. As between you and Inneractive, you retain all right, title and interest in and to the App and its Content and to your Marks that were made available via your App, and any derivatives thereof, including any Intellectual Property Rights therein (collectively: “Your IP”). All use of Your IP shall inure to your benefit and Inneractive shall not: (y) contest, or assist others to contest, your rights and/or interests in and to Your IP or the validity of your rights (as applicable) in and to Your IP and all applications, registrations or other legally recognized interests therein, or (z) seek to register, record, obtain or attempt to pursue any Intellectual Property Rights or other proprietary rights or protections in or to Your IP.

7.3. It is hereby agreed that the Advertisers retains all rights, title and interest in and to the Advertiser Data and/or derivatives thereof, including any Intellectual Property Rights therein (collectively: the “Advertiser IP”). All use of the Advertiser IP shall inure to the benefit of Advertiser. You and Inneractive will retain and reproduce any copyright, disclaimers and other proprietary notices in full and as they appear in or on the Advertiser IP.

7.4. You will not assert any Intellectual Property Rights with respect to the Inneractive IP or any element, derivation, adaptation, variation or name thereof.

7.5. You will not remove, obscure or alter any notices of Intellectual Property Rights or disclaimers appearing in or on any Content provided by Inneractive, whether available via the Services.

7.6. Inneractive encourages all its business partners to raise, offer and/or suggest additional functionality, features, improvements, business models, ideas or inventions in connection with the Services (collectively, “Inventions”). When doing so, you grant Inneractive an irrevocable, perpetual, non-exclusive, royalty-free, transferable, assignable, sub-licensable and worldwide license, to use, reproduce, distribute, transmit, make derivative works of, display, copy, make available to the public and perform the Inventions, whether through the web, software application, device or otherwise, in any media formats and through any media channels known today and developed in the future (“Inneractive License to Inventions”). Subject to the above mentioned, you retain all right, title and interest in and to the Inventions, including any Intellectual Property Rights pertaining thereto. Nevertheless, it is hereby acknowledged and agreed that any application or registration of any of Inventions (e.g. patent, copyright or trademark application or registration, or other application or registration of intellectual property rights) will be subject to Inneractive License to Inventions, and you will not undermine Inneractive’s rights under the Inneractive License to Inventions herein in any manner.

8. CONFIDENTIALITY

8.1. During the term of these Terms or your Agreement (as applicable), we or you (the “Disclosing Party”) may have disclosed or may disclose to you or us (the “Receiving Party”) certain Confidential Information. Receiving Party (a) will use the Confidential Information solely for its performance hereunder or under the Agreement (as applicable); (b) is authorized to disclose Confidential Information to any such employees of Receiving party, and solely with respect to Inneractive, also to any of its shareholders, directors, consultant and Affiliate’s employees, shareholders, directors and/or consultant, who are actively and directly participating in the performance hereunder or under the Agreement (as applicable) or who otherwise need to know for such purpose, and whom the Receiving Party shall first inform of and require to adhere to these Terms (c) will use at least the same degree of care to safeguard the Disclosing Party’s Confidential Information that it uses to protect its own Confidential Information, and in any event not less than a reasonable degree of care; (d) will make copies of materials embodying Confidential Information only as needed for the performance hereunder or Agreement or (if applicable), all of which will include any existing markings indicating that they are the Confidential Information of Disclosing Party, or will have markings supplied by Disclosing Party; (e) will immediately upon becoming aware of a breach of its security that reasonably may have resulted in unauthorized access to the Disclosing Party’s Confidential Information, notify Disclosing Party and shall cooperate fully with Disclosing Party’s investigation of and response to the incident; and (f) will not, without the prior written consent of the Disclosing Party, disclose to any person the Terms or the Agreement.

8.2. Disclosing Party will not be liable for disclosure of Confidential Information if made in response to a valid order of a Court or authorized agency of government; provided that (to the extent permitted by law) the Receiving Party provides the Disclosing Party with written notice promptly upon the Receiving Party’s knowledge or receipt of notification of the order, so that such party, if appropriate, may seek relief in the form of a protective order, an agreement to maintain the confidentiality by the body who demanded the disclosure or initiate any other steps to limit or avoid disclosure. In the event that such protective order or other relief is not obtained, receiving party will disclose only that portion of the disclosing party’s Confidential Information that its counsel advises that it is legally required to disclose, and at the Disclosing Party’s cost and expense, will work with disclosing party to minimize the extent and effects of such disclosure.

8.3. At any time during the term of hereof and the term of the Agreement (if applicable), upon the written request of the Disclosing Party, Receiving Party shall promptly either: (i) return to the Disclosing Party all Confidential Information furnished to the Receiving Party by the Disclosing Party, without retaining any copies thereof or (ii) destroy all Confidential Information furnished to the Receiving Party by the Disclosing Party, including any writing or recordings whatsoever prepared by the Receiving Party or its representatives based upon the Disclosing Party’s Confidential Information, and receiving party will furnish to Disclosing Party a certificate signed by an authorized officer of Receiving Party supervising such destruction and attesting under penalty of perjury that Confidential Information has been permanently destroyed, except to the extent a party is advised by counsel that such destruction is prohibited by law. Notwithstanding the foregoing, neither the Receiving Party nor any of its representatives shall be obligated to return or destroy Confidential Information that has been electronically archived by any such party in accordance with its automated security and/or disaster recovery procedures and made in the ordinary course of business; provided further that any Confidential Information so shall remain subject to the confidentiality provisions contained herein for so long as it is retained by the Receiving Party, irrespective of these Term and/or the Agreement (if applicable).

8.4. The duty to protect Confidential Information shall expire three (3) years from the date of termination of these Term or the term of the Agreement (if applicable).

9. REPRESENTATIONS AND WARRANTIES

9.1. Mutual. Either Party represents and warrants that: (a) it has all requisite power and authority to execute and enter into these Terms and perform its obligations therein and hereunder and that it is a valid and binding agreement by such Party; and (b) the execution of these Terms, and the performance under it, will not constitute a breach or default of or otherwise violate any agreement to which either one is a party to or violate any right of any third parties arising therefrom;

9.2. Your Representations and Warranties.  You hereby represent and warrant that: (a) you are the developer and/or the owner or licensee and distributor of the App and that you are solely and exclusively responsible for the App’s Content; (b) you are in legal age to form a binding agreement with Inneractive; (c) the App will include a privacy policy which is and will be throughout the Term fully compliant with any applicable law and regulation and industry self-regulatory guidelines, including the Digital Advertising Alliance Self-Regulatory Principles (“DAA”) or similar self-regulatory guidelines for mobile advertising in countries in which end users of the App are situated; (d) you have obtained all necessary consents from the App’s end users which are required for you to retain the Services, and that such consent has been retained in compliance with applicable data protection laws, rules and regulations, and that you may share End User’s information with third parties for advertising purposes; (e) you are, and shall remain at all times, solely responsible for the functionality, accuracy, reliability, integrity, quality or validity of all your App’s Content; and (f) the App and its Content: (i) does not and shall not infringe and/or violate any third party rights, including intellectual property rights or privacy rights; (ii) does not and shall not include any Prohibited Activity and/or Fraudulent Activity; (iii) is not an online service directed to children (“Child-Directed”) under the age of 13 or 16 as determined by the applicable data protection law (e.g. EU Directive  2016/679; Children Online Privacy Protection Act – “COPPA”), and to the extent that the App is Child -Directed, you will notify Inneractive by interacting with the Revenue Desk and flagging that such Ad unit ID was originated from a child under the age of 13 or 16 (as applicable). In the event that Prohibited Activity pertaining to the App, is detected: (y) you shall immediately remove and resolve such Prohibited Activity; and (z) Inneractive may immediately suspend the Services provided to you until, to the reasonable opinion of Inneractive, you have solved the issue.

9.3. Inneractive’s Representations and Warranties.  Inneractive represent and warrant that: (a) the Services shall, in all relevant manners, operate materially as set out in their respective service description and shall be and are in compliance with the applicable law and does not infringe any third-party Intellectual Property Rights; and (ii) it retains all required licenses and rights to provide you with the Services.

9.4. Inneractive does not make any representation with respect to so-called “open source” or free software that may be included in the Inneractive Exchange, Inneractive Revenue Desk, SDK or Tag. Inneractive hereby disclaims any and all liability to you or any third party related to any open source software that may be accompanying the Inneractive Exchange, Inneractive Exchange, Inneractive Revenue Desk, SDK or Tag.

10. NO WARRANTY.

10.1. THE SERVICES ARE PROVIDED BY INNERACTIVE “AS IS”. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE FULLEST EXTENT ALLOWABLE BY LAW, INNERACTIVE MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF BUSINESSABILITY, FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT, OR THOSE ARISING IN THE COURSE OF OR CONNECTED TO THE PERFORMANCE HEREUNDER, AND DISCLAIMS SUCH WARRANTIES. IN ADDITION, INNERACTIVE DOES NOT REPRESENT OR WARRANT THAT: (I) THE INNERACTIVE EXCHANGE, SDK OR THE INNERACTIVE REVENUE DESK WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; (II) THE OPERATION OF THE INNERACTIVE EXCHANGE, SDK OR THE INNERACTIVE REVENUE DESK, WILL BE UNINTERRUPTED; OR (III) YOU WILL PROFIT OR DERIVE ANY ECONOMIC BENEFIT FROM YOUR USE OF THE SERVICES. ANY RELIANCE ON THE SERVICES, INCLUDING THE INNERACTIVE EXCHANGE, SDK OR THE INNERACTIVE REVENUE DESK IS AT YOUR OWN RISK, AND INNERACTIVE DO NOT AND WILL NOT BE LIABLE FOR THE INNERACTIVE EXCHANGE, SDK OR THE INNERACTIVE REVENUE DESK, INCLUDING WITHOUT LIMITATION ANY MISTAKES OR INACCURACIES IN ANY ADS MADE AVAILABLE THROUGH THE INNERACTIVE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

10.2 Inneractive is not responsible for and does not provide any warranty with respect to any Content (including, without limitation, Ad Content or any App that is connected to the Inneractive Exchange. Inneractive does not have any obligation to monitor the Ad Content or the Content available on your App, and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the Ad Content or the App Content. WHILE INNERACTIVE IS UNDER NO OBLIGATION TO DO SO, WITHOUT LIMITING ANY OTHER TERMS OF THESE TERMS, INNERACTIVE RESERVES THE RIGHT TO REMOVE AND PERMANENTLY SUSPEND ITS SERVICES WITHOUT NOTICE IN THE EVENT THE APP CONTENT IS PROVIDED IN VIOLATION OF THESE TERMS.

11. INDEMNIFICATION

11.1 You (the “Indemnifying Party“) shall defend, hold harmless, and indemnify Inneractive and/or its directors, officers, employees, agents, successors and permitted assignees and/or its Affiliates and/or its directors, officers, employees, agents, successors and permitted assignees (collectively “Indemnified Party“), from and against any and all claims, damages (including punitive and exemplary), losses, fines, penalties and interests, liabilities, suits, actions, demands, proceedings, expenses and/or liabilities of any kind, (including but not limited to reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) threatened, asserted or filed (collectively, “Claims“) brought or made by any third party against the Indemnified Party arising out of or connected with the following: (a) a breach or alleged breach of any warranty, representation or obligation made by the Indemnifying Party under these Terms and/or the Agreement (if applicable); and/or (b) any use by Indemnifying Party, or any one on its behalf, of the Services in any manner inconsistent with or in breach of these Terms and/or the Agreement (if applicable).

11.2 The Indemnified Party shall: (a) promptly notify the Indemnifying Party of such Claim; provided that a failure to give such prompt notice shall not excuse or diminish the Indemnifying Party’s obligations under this Section, (b) provide the Indemnifying Party, at the cost of the Indemnifying Party, with reasonable information, assistance and cooperation in defending the lawsuit or Claim, and (c) give the Indemnifying Party full control and sole authority over the defense and settlement of such Claim; provided, however, that any settlement will be subject to the Indemnified Party’s prior approval and provided further that Indemnified Party shall not be required to allow Indemnifying Party to assume the control of the defense of a Claim to the extent that Indemnified Party determines that (i) such claim relates to the Inneractive Platform or any part thereof, (ii) any relief other than monetary damages is sought against Indemnified Party, (iii) there may be a conflict of interest between the Indemnifying Party and Indemnified Party in the conduct of the defense, or (iv) settlement of, or an adverse judgment with respect to, such Claim could reasonably be expected to establish a precedential custom or practice materially adverse to the continuing business interests of Indemnified Party, and in such events the costs of defense will be considered “Claims” as defined above. The Indemnified Party may join in the defense of such Claim with counsel of its choice at its own expense.

11.3. Infringement Claims. If in Inneractive’s sole discretion, the Services, the Inneractive Exchange, SDK or Inneractive Revenue Desk is or is likely to become, subject of an infringement Claim, then Inneractive may, at its expense, either: (a) procure the right to continue distributing and using the Services the Inneractive Exchange, SDK or Inneractive Revenue Desk; (b) replace or modify the Services, Inneractive Exchange, SDK or Inneractive Revenue Desk so that it becomes non-infringing; or (c) terminate these Terms and the Agreement (if applicable). Notwithstanding the foregoing, Inneractive shall have no obligation for any Claim of infringement arising from: (1) any combination of the Services, Inneractive Exchange, SDK or Inneractive Revenue Desk with programs, equipment or hardware not supplied or approved in writing by Inneractive, where such infringement would not have occurred but for such combination; (2) the adaptation or modification of the Services, Inneractive Exchange, SDK or Inneractive Revenue Desk by you, where such infringement would not have occurred but for such adaptation or modification; or (3) the use of a the Services, Inneractive Exchange, SDK or Inneractive Revenue Desk in a manner for which it was not designed or intended or which is not permitted hereunder, where such infringement would not have occurred but for such use.

THIS SECTION STATES THE ENTIRE LIABILITY OF INNERACTIVE’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.

12. LIMITATION OF LIABILITY

IN NO EVENT WILL INNERACTIVE, AND/OR ITS AFFILIATES ITS LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE CONFIGURATION, INSTALLATION, DISTRIBUTION, DISPLAY OR USE OF OR INABILITY TO USE THE SERVICES, THE INNERACTIVE EXCHANGE, SDK OR THE INNERACTIVE REVENUE DESK UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT INNERACTIVE OR ITS THIRD PARTY LICENSORS WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. IN NO EVENT, SHALL INNERACTIVE’S AND/OR ITS AFFILIATES AND/OR THIRD-PARTY LICENSORS’ AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THESE TERMS, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE INNERACTIVE SHARE DURING A THREE (3) MONTHS PERIOD PRECEDING THE CLAIM IN THE APPLICABLE TERRITORY AND BUSINESS SEGMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.

13. TERM AND TERMINATION

These Terms shall commence on the date you have provided your consent to these Terms or on the Effective Date of the Agreement (if applicable) and shall continue in force thereafter, until terminated or expired as provided herein (the “Term“):

13.1. Termination for Convenience. Either Party may terminate these Terms and/or the Agreement (as applicable you), at any time for any reason and without liability by thirty (30) days prior written notice of to the other Party for such termination.

13.2. Immediate Termination. Inneractive may immediately suspend and/or deactivate the Account, the Services, or terminate these Terms and the Agreement (as applicable), in any one of the following instances: (a) if you materially breached any obligation, representation and/or warranty contained in these Terms and/or the Agreement; (b) if you breached any obligation, representation and/or warranty contained in these Terms and/or the Agreement and failed to cure such breach within two (2) business days after receiving written notice thereof by Inneractive; (c) if you breached any material obligation, representation and/or warranty contained in these Terms and/or the Agreement and failed to cure such breach within two (2) days after receiving written notice thereof by Inneractive; (d) if you engaged in any action that, in Inneractive’s sole discretion, reflects poorly on Inneractive and/or the Services or otherwise disparages or devalues Inneractive’s reputation or goodwill; (e) if Inneractive is required to suspend or deactivate the Services or any part thereof in accordance with any applicable law or due to a court or governmental order; (f) if you become insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency, or suffers or permits the commencement of any form of insolvency, administration or receivership proceeding, or has any petition under bankruptcy, insolvency or administration law filed against it, which petition is not dismissed within thirty (30) days of such filing, or has a trustee, administrator or receiver appointed for a material portion of its business or assets. If you become subject to any of the events described in this clause (e) it shall immediately notify Inneractive in writing; or (g) if Inneractive reasonably determines that it is commercially impractical for Inneractive to continue supporting the Services, or any part thereof, under these Terms and/or the Agreement as a result of legal, business or technical considerations.

13.3. Effect of Termination. Upon the termination or expiration of the Agreement, including these Terms, for any reason: (a) all rights and licenses granted hereunder by either Party shall cease immediately, except for the Inneractive License to Inventions and you shall immediately cease using the Services and your Account; and (b) you shall promptly return to Inneractive, or destroy and certify the destruction of, all of Inneractive’s Confidential Information, in accordance with Section 8 and return to Inneractive all marketing and promotional materials provided to you by Inneractive. UPON ANY TERMINATION OR SUSPENSION, YOUR ACCOUNT WILL NO LONGER BE ACCESSED BY YOU. Furthermore, Inneractive will have no obligation to maintain any information stored in its data centers related to your Account or to forward any information to you or any third party.

13.4. The following Sections: 2.6, 6-8, 10-12, 14, this Section 13.4, as well as other provisions of these Terms that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of these Terms, shall survive any termination or expiration of the Agreement.

14. MISCELLANEOUS

14.1. Nothing in the Agreement, including these Terms, shall be construed as preventing or otherwise limiting Inneractive from entering into similar agreements with any third party and/or receiving similar or different services from any third party.

14.2. To enter to the Agreement, including to these Terms, you must be at least 18 years old or the legal age of majority in the jurisdiction in which you reside.
14.3. All rights which are not expressly granted herein are reserved by Inneractive. You may not make any use of the Services in whole or in part in any manner not expressly permitted by these Terms and/or the Agreement.

14.4. These Terms together with the Agreement (if applicable), constitute the entire agreement between the Parties with respect to the subject matter hereof. These Terms, together with the Agreement (if applicable) supersede any other prior or collateral agreements with respect to the subject matter hereof, whether oral or written.

14.5. Neither these Terms nor the Agreement (if applicable), nor any right, obligation or interest herein or thereto, may be assigned or delegated by you without the prior written consent of Inneractive. Any attempted unauthorized assignment or delegation shall be null and void. Inneractive may assign the Agreement, including these Terms, or any rights or delegate any obligations of Inneractive under the Agreement, including hereunder, without your consent. Inneractive will be released of all rights or liabilities under these Terms and the Agreement (as applicable), including, upon consummation of such assignment, transfer or delegations.

14.6. These Terms, together with the Agreement, shall be binding on and inure to the benefit of each of the Parties and their respective successors and assignees. The Agreement, including these Terms, are not made for the benefit of any third party who is not a party hereto, and only the parties hereto or their respective successors and permitted assigns will acquire or have any benefit, right, remedy or claim under or by reason of the Agreement, including these Terms. You will not use the Agreement, including these Terms, to enforce any contractual relationship or provision on each other and/or on Inneractive. Inneractive will not be a party to any dispute between you arising out of and/or in connection with the Agreement, including these Terms.

14.7. These Terms and the Agreement (if applicable), shall be governed by and construed under the laws of Israel, excluding its conflict of law rules and principles. Each Party agrees to submit to the personal and exclusive jurisdiction of the courts of Tel-Aviv, Israel. The parties specifically exclude the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Notwithstanding the foregoing, Inneractive may lodge a claim against you pursuant to the indemnification clauses above, in any court adjudicating a third-party claim against Inneractive, in which case the law that governs the third-party claim against Inneractive shall also govern Inneractive’s indemnification claim against you.

14.8. Neither Party shall be liable under these Terms and/or the Agreement (if applicable), by reason of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, war, governmental action, or any other cause that is beyond the reasonable control of such party.

14.9. If any provision of these Terms or the Agreement (if applicable), is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of these Terms or the Agreement (if applicable), and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the parties hereto and has like economic effect.

14.10. The failure to require performance of any provision of these Terms or the Agreement (if applicable) shall not affect a party’s right to require performance at any time thereafter; nor shall waiver of a breach of any provision constitute a waiver of the provision itself.

14.11. The Parties hereto are and shall remain independent contractors, and nothing herein shall be deemed to create any agency, partnership or joint-venture relationship between the parties. Neither party shall be deemed to be an employee or legal representative of the other, nor shall either party have any right or authority to create any obligation on behalf of the other party.

14.12. All notices required or permitted under these Terms and/or the Agreement (if applicable), shall be in English and in writing and shall be delivered (a) to Inneractive by facsimile, e-mail or other electronic means, by registered or certified mail (postage prepaid) or by overnight courier service, at the address: 17 Hamefalsim St. Petach -Tikva 4951447, P. O. BOX 3102, Israel or at such other address as Inneractive shall have furnished to you in writing and also to email: legal@Inner-active.com. Any notice to you shall be delivered to your address set forth in your Account and/or the Agreement (if applicable) or to any other address furnished by you in writing. A notice shall be deemed given (i) upon receipt when delivered personally, (ii) upon verification of receipt via facsimile or e-mail, (iii) within one (1) business day of being sent by overnight courier, or (iv) within three (3) business days of being sent by registered or certified mail, and (b) to you – to the e-mail address provided by you in connection with your Account or the Agreement (as the case may be). For purposes of the foregoing, Inneractive shall be permitted to rely upon the e-mail address provided by you to Inneractive as provided above and shall not be responsible for delays in the delivery of e-mails which delays are not associated with Inneractive’s mail server.

 

Last Update Date: November 2nd, 2017


 

Appendix A

DEFINITIONS

The following capitalized terms shall have the following meanings:

1. “Advertisement” or “Ad” means the promotional text, graphics, video or rich media.

2. “Advertiser(s)” means a person, organization or company that is engaged by written contract with Inneractive for the purchase of Ad Inventory and the placement of Ads via the Inneractive Exchange, including Ad agency, Ad network and demand side platforms.

3. “Advertiser Data” means: (i) all data Advertiser submits to the Inneractive Exchange in a Bid for a single Ad impression, including the Ad Content, and (ii) all data Advertiser collects following the purchase of a such impression (i.e. post Bid-win) by using its own technology independently of Inneractive, excluding Ad Request.

4. “Ads Inventory” means the Ad slots available on the App on which Ads may be displayed through the Services.

5. “Affiliates” means any and all entities which, directly or indirectly, control, being controlled by or under common control with Inneractive.

6. “App” means a mobile application and/or a mobile website developed and/or owned by you and/or licensed to you and distributed by you.

7. “Ad Request” means any parameter or information transmitted to Inneractive from the App and/or from Supply Partner in connection with the App.

8. “Confidential Information” means any proprietary, confidential and/or trade secret information of Disclosing party and/or its Affiliates and/or others possessed by disclosing party, whether furnished before or after the Effective Date of your consent to these Terms or your Agreement (as applicable), regardless of the manner in which it is furnished. Such information includes without limitation, the following: (a) any information, artwork, designs, ideas, concepts, know-how, data, products, services, processes, techniques, drawings, programs, code, inventions, computer program, formulae or test data, work in progress, engineering, manufacturing, marketing, financial, sales, suppliers, customers, investors and/or business information, whether in oral, written, graphic, or electronic form; and/or (b) any document, diagram, drawing, computer program and/or code or other communication; and/or (c) the terms and conditions of your Agreement. Any information disclosed by the disclosing party whether it is conspicuously marked “confidential”, is known or if it should have been reasonably known by the receiving party to be confidential in nature shall be considered as Confidential Information. For purposes of these Terms, Confidential Information shall not include any information that: (a) is, or subsequently becomes, publicly available without receiving party’s breach of any obligation owed to disclosing party; (b) became known to receiving party prior to disclosing party’s disclosure of such information to receiving party; (c) became known to receiving party from a source other than disclosing party by means other than by a breach of an obligation of confidentiality owed to disclosing party; or (d) is independently developed by receiving party without the use of any of disclosing party’s Confidential Information. If a particular portion or aspect of the Confidential Information becomes subject to any of the foregoing exceptions, all other portions or aspects of such information shall remain subject to all of the provisions of these Terms.

9. “Content” means data, information, graphics, links, web pages, signs, images, software and code, files, texts, photos, audio or video, sounds, visual works, musical works, works of authorship, and components.

10. “Costs” means serving costs and discrepancies related disputes, billing processing and credit risk assessment management, all up to a maximum 10% of the Revenue.

11. “End User” means an individual user who uses the App.

12. “End User Content” means any Content, information or other materials which any End User posted, uploaded, linked or otherwise submitted to or via the App and any other data collected in connection with such End User use of the App.

13. “Fraudulent Activity” means any of the following activities: (a) disassemble, decompile, attempt to derive the source code of the Services or any part thereof, in whole or in part, or permit or authorize any other person or entity to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition; (b) circumvent the requirement to accept the EULA as part of the SDK installation process; (c) reverse engineer, bypassing, circumventing or manipulating the Services or any part thereof and/or underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Services or any part thereof; (d) hacking to a Services or any part thereof, or using the Services, or any part thereof, in order to hack into public or private infrastructure or equipment; (e) using in connection with the Services, or any part thereof, any material that contains software viruses or any other computer code, files or programs designed to interrupt, hijack, destroy or limit the functionality of any computer software, hardware, network or telecommunications equipment; or (f) any act or attempt to bypass, tamper with, abuse, manipulate and/or alter, modify or otherwise interfere with the operation of any of the Ads or any link contained within any click-through Ads, the SDK, API, the Inneractive Exchange, or the Ads placement onto the App, including without limitation, automated and/or fraudulent clicks on Ads.

14. “Inneractive Revenue Desk” means Inneractive’s proprietary online reporting and analysis dashboard regarding your activity via the Inneractive Exchange, developed and owned by Inneractive, excluding third party services that may be available therein (such as GeoEdge).

15. “Inneractive Exchange” means a proprietary technology platform developed by Inneractive which enables App developers to sell their App’s Ad space inventory to Advertisers programmatically.

16. “Inneractive Privacy Policy” means the policy available at: http://inner-active.com/privacy-policy as may be updated from time to time.

17. “Intellectual Property Right(s)” means: (i) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (ii) all registered and unregistered trademarks, service marks, trade names, trade dress, logos and registrations and applications for registration thereof; (iii) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (iv) all trade secrets and confidential business and technical information (including, but not limited to, research and development, know-how, proprietary knowledge, financial and marketing information, business plans, formulas, technology, engineering, production and other designs, drawings, engineering notebooks, industrial models, software and specifications); (v) all rights in databases and data compilations, whether or not copyrightable; and (vi) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).

18. “Marks” mean trademarks, service marks, trade names, trade dress and associated logos, in each case, whether or not registered.

19. “Metamarkets” means a third-party tool that generates additional information on the auction behavior via the Inneractive Exchange that provides insights and analytics in connection with yield management.

20. “Net Revenue” means all amounts received by Inneractive from Advertisers for Ads delivered and placed on the App via the Services minus taxes, Costs, rebates, refunds, charge-backs, make-good, bad debts or any other uncollected amounts.

21. “Prohibited Activity” means: (a) any activity or use that (i) violates any applicable law, including without limitation, data protection laws, regulations or order of any court or tribunal, including without limitations, collecting, using or disclosing personal identifiable information (“PII”) from any individual (or “personal data” of End Users within the meaning of EU Directive 95/46/EC and 2002/58/EC (as amended by Directive 2009/136/EC) without obtaining End User’s prior written consent for such collection and use, collection of PII from minors in violation of the Children’s Online Privacy Protection Act of 1998 (“COPPA”) or any other similar legislation in a different jurisdiction relating to the security and privacy of minors and their personal information online; (ii) violating any industry best practices and industry self-regulatory guidelines, including the Digital Advertising Alliance Self-Regulatory Principles (“DAA”) or any other similar self-regulatory guidelines in a different jurisdiction relating to mobile advertising and protection of End User’s rights; (iii) violates, misappropriates, or infringes any third party Intellectual Property Rights, privacy rights, rights of publicity, or other proprietary or legal rights; and (iv) materially interferes or disrupts Ad serving, auction or otherwise in the proper function of the Services; (v) mask the App’s URL or App’s bundle ID, or employ any means to obscure the true source of traffic; (vi) artificially inflate impressions, clicks, or Ad requests; induce or trick the end user into clicking on an Ad (e.g. placing arrows or text such as “Click here” next to an Ad); and/or (b) include in the App any Content which: (i) is, promotes, presents, or advocates pornographic, obscene, offensive, libelous, defamatory, abusive, gambling-related, or discriminatory, promotes illegal drugs or arms trafficking, violates US export control laws, creates a risk to a person’s safety or health, or is misleading or deceptive material or is any type of malware; (ii) promotes, advocates or facilitates terrorism, terrorist-related activities or violence; (iii) contains any Nazi symbols or references; (iv) include materials which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law, (c) contain viruses or similar programs that might harm data or computer systems, or (e) is otherwise or unlawful or inappropriate as determined by Inneractive in its sole discretion;

22. “Revenue” means all amounts received by Inneractive from Advertisers for Ads delivered and placed on the App via the Service.

23. “Tag” means Inneractive’s proprietary HTML code through which Inneractive enables the Ads to be delivered on the App in case the App is a mobile website.

 

Appendix B

Data Processing Addendum

This Data Processing Addendum (“DPA”) supplements and forms part of any existing and currently valid agreement (“Agreement“), either previously or concurrently made between Inneractive Ltd. and its affiliates (“Inneractive“, “we” or “us“) and you regarding the processing of Personal Data, as defined hereunder, as part of the service(s) provided to you by Inneractive under the Agreement (“Service(s)”). In any conflict between this DPA and any Agreement, the terms of this DPA shall prevail.

Any capitalized terms not defined herein will have the meaning as set forth in the Agreement.

1. Unless when otherwise stated in this DPA, the following words and expressions shall have the following meaning:1.1 “Data Subject” shall mean the identified or identifiable natural person whose personal data are the subject of the Processing under this DPA. The categories of Data Subjects whose Personal Data are subject to Processing under this DPA are listed in this DPA.

1.2 “Law” shall mean applicable data protection and privacy laws, rules and regulations, including without limitation the EU Regulation 2916/679 (“General Data Protection Regulation”);

1.3 “Personal Data” shall mean any information relating to an identified or identifiable natural person as defined in Art 4 Nr.1 of the General Data Protection Regulation. The categories of Personal Data subject to Processing under this Agreement are listed in this DPA.

1.4 “Processing” shall mean any operation or set of operations which is or are performed on Personal Data, whether by automated means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, duplication, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;

1.5 “Purposes” shall mean the limited, specific and legitimate purposes of the Processing, as described in this DPA and/or the Agreement.

2. Data Processing.

2.1 Within the scope of the Service(s), you hereby engage Inneractive to collect, process and/or use Personal Data on your behalf. In respect of any Personal Data supplied by you to Inneractive in relation with your use of the Service(s) and to the extent that EU data protection laws apply to the processing of the Personal Data, you are considered as the Data Controller and Inneractive is considered the Data Processor. You acknowledge and agree that you have the sole responsibility on the lawfulness of the Processing and warrant to Inneractive that you are legally allowed to engage Inneractive for processing the Personal Data on your behalf and have provided all necessary notices and obtained all required consents from the Data Subjects for the Processing described in this DPA.2.2 Neither party shall do, nor cause or permit to be done, anything which may knowingly or intentionally result in a breach of the applicable Law.

2.3 Inneractive will only Process Personal Data on your behalf of and in accordance with your instructions. You instruct Inneractive to Process Personal Data for the following purposes: (i) Processing in accordance with this DPA, the Agreement and pursuant to the features and limitations of the applicable Service(s) which Inneractive provides you under the terms of the Agreement; and (ii) Processing to comply with other reasonable instructions provided by you, where such instructions are consistent with the terms of the Agreement. Inneractive will be under no obligation to comply with instructions that Inneractive deems as violating applicable Laws. Processing outside the scope of this DPA (if any) will require prior written agreement between Inneractive and you on additional instructions and terms for processing.

2.4 To the extent required under the applicable Law, you will provide an appropriate notice to the Data Subjects about the Processing of their Personal Data under this DPA and to Inneractive’s Privacy Policy, which is available at: http://inner-active.com/privacy-policy/ and to the extent required under the applicable Law, you will receive and document the Data Subjects’ consent thereof.

2.5 Inneractive only collect information that you have authorized it to collect via Inneractive’s SDK or tag which is integrated with the mobile application and/or mobile app you own or manage, or via an API integration between your server and Inneractive’s server or via a third party’s tracking tools, that Inneractive implement on your behalf. Inneractive may process the following information:

Information about an end user’s device, such as device type and model, network provider, browser type, language, device IP address, operation system, network connection type, device GPS location (only if user provides permission) mobile advertising identifier such as the Advertising ID (Apple IDFA or Google AAID),

Information about your mobile app, such as package name, key words, version.

Additional user Information we may receive from you, such as users’ age, gender, zip code and GPS location.

Information we may receive from you or from third parties engaged on your behalf by Inneractive as non-precise device location based on IP address, device specifications and user’s interest’s information.2.6 Data Subjects affected by the Processing under this DPA are the end users of your mobile app and/or website or service(s). Inneractive uses the Personal Data solely for providing the Service(s)u. Processing operations by Inneractive include the Processing of the aforementioned Personal Data to serve end users with contextual ads and/or targeted ads that are relevant to the end users and may interest the end users, to produce advertising reports on the performance of the campaigns on your mobile app and/or website and to improve the advertising performance on your mobile app and/or website. In that context Inneractive will also combine on your behalf Personal Data from different sources to improve Inneractive’s Service(s). Inneractive also processes your Personal Data for fraud prevention, bot detection, rating, analytics, viewability, geo location services, ad security & verification services and problem & fault management.

2.7 Inneractive imposes appropriate contractual obligations upon its personnel who engage in the Processing of Personal Data, including relevant obligations regarding confidentiality, data protection and data security. Inneractive ensures that its applicable personnel were informed of the confidential nature of the Personal Data, have received appropriate training and have executed written confidentiality agreements. Inneractive will further ensure that such confidentiality agreements survive the termination of the employment or engagement of its personnel.

2.8 Organizational and technical measures. Inneractive shall take appropriate technical and organizational measures to ensure a level of security appropriate to the risk involved in Processing your Personal Data. These measures are aimed at ensuring that your Personal Data is reasonably protected against accidental or unauthorized destruction, accidental loss, as well as against unauthorized alteration of, disclosure of and access to your Personal Data -all, as specified at Fyber.com/securitypolicy (the “Data Security Addendum”). To the extent that the technical and organizational measures taken by Inneractive do not fulfil your requirements, you must notify Inneractive in written or in text form thereof prior to the start of any Processing of your Personal Data. In that case, both parties will negotiate in good faith an adjustment of the technical and organizational measures and the compensation for those required adjustments. The technical and organizational security measures may be adjusted by Inneractive at any time insofar as long as the security level does not fall below the security level of the technical and organizational security measures set forth in the current security measures provided by Inneractive.

3. Cooperation
3.1. Inneractive shall use commercially reasonable efforts to provide in a prompt manner such co-operation as is reasonably necessary to enable you to ensure compliance with applicable Law. In particular, Inneractive will notify you without undue delay of, unless prohibited under the applicable Law:3.1.1 any violation which has taken place during the Processing of your Personal Data by Inneractive of (i) any provisions of the terms in this DPA, and/or (ii) any instructions issued by you pursuant to the terms of this DPA;

3.1.2 any official competent supervisory proceedings regarding the Processing of your Personal Data conducted by data protection authorities vis-à-vis Inneractive, as well as support and cooperation which may be required from you in such inspections/proceedings conducted vis-à-vis you upon your request;

3.1.3 any legal or factual circumstances preventing Inneractive from executing any of your instructions under the terms of this DPA; and
3.1.4 any material changes impacting the technical and organizational security measures implemented by Inneractive which cause such measures to fall short of Inneractive’s data security obligations under this DPA.

3.2 In the event that Inneractive detects or in the event that facts justify the assumption that (i) personal data processed by Inneractive on your behalf has been unlawfully transmitted or (ii) third parties have unlawfully gained access to such data or (iii) the integrity or confidentiality of your Personal Data has been compromised in any other way (data security incident), Inneractive shall give you without undue delay written notification specifying the date and time, nature, and extent of the incident. The notice will also include a description of potential consequences and potential adverse effects of the incident. Furthermore, Inneractive will inform you about the measures it has taken in order to remediate the risks involved with the incident, to mitigate potential adverse effects and to prevent the occurrence of a similar incident in the future.

3.3 To the extent Inneractive receives complaints and/or inquiries from Data Subjects or third parties requesting information regarding the Processing of your Personal Data, Inneractive shall forward such complaints and/or inquiries to you without undue delay. Inneractive will not provide any information to any Data Subjects or third parties, unless (i) Inneractive is statutorily obligated to provide such information or (ii) you have given Inneractive instructions to do so. To the extent that Inneractive shall be obliged to provide to third parties information regarding your Personal Data on the basis of statutory provisions, Inneractive shall inform you in due time prior to providing the information, of the recipient, the date and time, the content of the information to be issued, and the legal basis thereof.

3.4 Inneractive will support you and assist in handling Data Subjects’ requests to exercise their rights to access, rectify, erase or such other rights afforded to Data Subjects under the applicable Law, in relation to their Personal Data, by taking reasonable measures based upon your instructions. Should you be obligated to any Data Subject or third party to provide information regarding the Process of your Personal Data by Inneractive, Inneractive will use commercially reasonable efforts to support you in the provision of such information.

3.5 Audit right. To the extent that the applicable Law requires you to be in a position to monitor Inneractive’s Processing of your Personal Data adequately, you, as the Controller, will have the right to request Inneractive for an audit, at any time, to the extent necessary to check whether the following are being complied with by Inneractive, as the Processor, and its subprocessors: (i) any provisions of the Law, (ii) the terms of this DPA, and (iii) your instructions as the Controller. However, Inneractive may provide to you a copy of its most recent third-party audits or certifications by an independent, third-party auditor, as applicable, or any summaries thereof in order to fulfil your audit rights. If an audit is required by Law, which requirements cannot be fulfilled by the provision of such a certification, you may conduct, either by yourself or through a third party independent contractor selected by you at your expense, an on-site audit of Inneractive’s architecture, systems and procedures relevant to the security and integrity of your Personal Data. Such audit may be conducted subject to the following terms: (i) the audit will be pre-scheduled in writing with Inneractive, at least 30 days in advance and will be performed not more than once a year; (ii) all your personnel who perform the audit, whether employed or contracted by you, will execute Inneractive’s standard non-disclosure agreement prior to the initiation of the audit, and a third party auditor will execute a non-competition undertaking as well; (iii) you will take all necessary measures and verify that the auditors do not access, disclose or compromise the confidentiality and security of Personal Data other than Your Personal Data on Inneractive’s information and network systems; (iv) you will take all necessary measures to prevent any damage or interference with Inneractive’s and Inneractive third party service providers’ information and network systems; (v) you will bear all costs and assume responsibility and liability for the audit and for any failures or damage caused as a result thereof; and (vi) any audit activities on Inneractive third-party service providers’ information systems will be pre-scheduled and agreed with the applicable providers; (vii) you will keep the audit results in strict confidentiality, will use them solely for the specific purposes of the audit under this section 3.4, will not use the results for any other purpose, or share them with any third party, without Inneractive’s prior explicit written confirmation; (viii) If you are required to disclose the audit results to a competent authority, you will provide Inneractive with a prior written notice, explaining the details and necessity of the disclosure and further provide all necessary assistance to prevent such disclosure.

 

4. Sub-processing
4.1 Inneractive engages sub-processors to perform certain Processing of your Personal Data on your behalf. Prior to an engagement with a sub-processor, Inneractive requires or receives adequate assurances that the sub-processor complies with obligations substantially similar to the obligations as set out in this DPA.
4.2 Upon the execution of this DPA, you hereby give Inneractive your consent to engage the companies detailed at http://www.fyber.com/subprocessors as sub-processors.
4.3 Where a sub-processor fails to fulfill its data protection obligations or statements, Inneractive will remain fully liable to you for the performance of the sub-processor’s obligations to the same extent that Inneractive would be liable to you directly under the terms of this DPA, except as otherwise set forth in the Agreement, if Inneractive would have performed the obligations of the sub-processor.
4.4 Inneractive will inform you of an Inneractive’s engagement with a new sub-processor. You may object to the use of new or additional sub-processor by promptly sending Inneractive a written notice. If you object to the new sub-processor, Inneractive will make commercially reasonable efforts to provide you the same level of Service(s) without the use of such sub-processor. Notwithstanding, your objection and the results thereof will not amend, alter or reduce your obligations under the Agreement.
4.5 Notwithstanding the provisions here above (e.g. prior consent by you), you hereby authorize Inneractive to sub-contract the Processing to service providers based outside of the European Economic Area (EEA), to the extent necessary, at Inneractive sole discretion, to duly perform the Service(s) on condition that the service providers provide sufficient guarantees in relation to required level of data protection, e.g. through a Privacy Shield certification according to EU Commission Decision 2016/1250, or a sub-contracting agreement which is based on the standard contractual clauses launched by virtue of the EU Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC (the “Model Contract Clauses”), or based on such other applicable trans-border data transfer mechanisms. Any such Model Contract Clauses concluded by Inneractive shall be treated as if concluded in the name and on behalf of you. You shall be responsible to obtain regulatory approvals from the relevant data protection authorities, when required by Law.

5. Anonymized Data. Inneractive may process data based on extracts of Personal Data on an aggregated and non-identifiable forms, for Inneractive’s legitimate business purposes, including for testing, development, controls and operations of the Services, and may share and retain such data at Inneractive’s discretion.

6. Term. This DPA shall become effective upon its execution by the Parties. It shall terminate upon the end of the Processing of Personal Data by Inneractive in accordance with the Agreement unless otherwise provided in this DPA. After the termination of this DPA or earlier upon request of you, Inneractive will depending on your instructions, permanently delete all your Personal Data and copies thereof in its possession within 30 days.

7. Notices. If you wish to make any inquiries about this DPA, please contact Inneractive’s legal team at: Legal@fyber.com.