AppsFlyer Agency Agreement

The agency, the entity accepting this AppsFlyer Agency Agreement (the “Agency” and “Agreement”, respectively), operates a certain media agency for managing its customers marketing campaigns (“Agency Services”). The Joint Customer (as defined below) wishes to provide the Agency with access to Joint Customer Data through the AF Services and enable the Agency to perform various actions using the AF Services on its behalf.

This Agreement sets forth the terms under which AppsFlyer enables Agency to use the AF Services on Joint Customer’s behalf solely for the purpose of providing the Joint Customer with the Agency Services (the “Purpose”).

Please read this Agreement carefully. By clicking “Next”, or otherwise clicking your acceptance to this Agreement, you signify that you have read, and agree to be bound by, the terms and conditions of this Agreement and that you have the full authority to enter into and bind Agency to the Agreement. AppsFlyer may modify this Agreement from time to time as described herein. Your continued use of the AF Services following such modifications shall constitute your consent to the modified Agreement.

Definitions. Any capitalized terms not otherwise defined under Section 1 below shall be defined in the body of the Agreement.
1. “Agency Account” shall mean an account providing Agency with access to the AF Services, solely for the Purpose, through a website made available by AppsFlyer.
2. “Affiliate” shall mean any entity that, directly or indirectly, controls, is controlled by, or is under common control with a party to this Agreement, where control means the power to direct the affairs or management of such entity, whether through the ownership of at least 51% (fifty-one percent) of the voting securities, by contract, as trustee or executor.
3. “Applications” shall mean the Joint Customer’s products, services, websites, advertisements, mobile applications and/or other technology for which the Developer Tools may be used and the AF Services and Agency Services may be provided.
4. “AppsFlyer” shall mean AppsFlyer Ltd., incorporated under the laws of the State of Israel, having its registered office at 14 Maskit St. Herzliya, Israel, and/or any of its Affiliates.
5. “AppsFlyer Properties” shall mean the AF Services, the Developer Tools and all other technology utilized by AppsFlyer to provide the AF Services, including any and all patents, copyrights, trademarks, trade names, trade secrets and other intellectual property rights relating to, embodied by, or incorporated in any of the foregoing, and including any updates, upgrades, enhancements, modifications, improvements to, or derivatives of any of the foregoing, but excluding any Joint Customer Properties therein.
6. "Children” shall mean individuals under such age as determined by any laws and/or regulations applicable to Joint Customer.
7. “Confidential Information” shall mean any and all information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), including, but not limited to, technical information, non-technical information, product information, plans and pricing, financial information, marketing plans, business strategies, research and development, software and hardware, APIs, specifications, designs, source codes, object codes, records, methods, techniques, processes, legal documents, that: (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; or (b) should reasonably be recognized as confidential information of the Disclosing Party due the nature of the information. AppsFlyer’s Confidential Information includes, without limitation, the pricing under this Agreement.
8. “Joint Customer” shall mean a customer that uses the AF Services, the Agency Services and has requested to enable the Agency to use the AF Services for the Purpose.
9. “Joint Customer Content” shall mean any Joint Customer materials, images, texts, videos, music, logos, trademarks, active URLs, campaign and advertising creative, and/or other content uploaded, stored or provided by the Agency, on the Joint Customer’s behalf, to the AF Service.
10. “Joint Customer Data” shall mean End User Data, Joint Customer Content and Campaign and Analytics Data (as defined in Section 10) but excludes Aggregated and De-Identified Data.
11. "Joint Customer Properties" shall mean collectively Joint Customer’s Applications, Joint Customer Data, and Reports, but excluding any AppsFlyer Properties therein.
12. “Developer Tools” shall mean any tags, SDKs, APIs, JavaScript, pixels, attribution or redirect links, cookies or other similar technologies used or made available by AppsFlyer to Joint Customer and/or Agency to support the provision of AF Services by AppsFlyer.
13. “Documentation” shall mean implementation manuals and other policies and instructions relating to the use and operation of the Developer Tools and AF Services whether in printed form, electronic form, available online (including at: https://dev.appsflyer.com and https://support.appsflyer.com) or in any other format otherwise supplied by AppsFlyer.
14. “DPA” means AppsFlyer’s Data Processing Addendum available at https://www.appsflyer.com/legal/dpa/.
15. “End User(s)” shall mean any end users of the Applications or those who have interacted with the Applications.
16. “End User Data” shall mean data related to End Users: (i) collected by the Agency on the Joint Customer’s behalf through implementation and use of the Developer Tools, (ii) received by the Agency on the Joint Customer’s behalf from its Integrated Partners, and/or (iii) uploaded or stored by the Agency on the Joint Customer’s behalf to the AF Services.
17. “Feedback” shall mean any suggestions, enhancement request, recommendation, correction or other feedback provided by Agency to AppsFlyer relating to the AF Services or any part thereof.
18. “Integrated Partner(s)” shall mean certain third parties that Agency works with and selects to activate via the AF Services on Joint Customer’s behalf, such as advertising networks, publishers, and analytics providers.
19. “Permitted End User Data” shall mean the End User Data that the AF Service is designed to process in order to perform the AF Services and which may include technical information about End User devices (e.g. type, model, OS, language), identifiers (e.g. advertising ID’s, device ID’s), network information (e.g. IP address), and engagement information (e.g. advertisements clicked and viewed, in app events and purchases), subject to Section 9(a) below, all as further described in Annex 1 of the DPA.
20. “Reports” shall mean any reports or output generated through the AF Services, whether manually or automatically, containing Joint Customer Data or other datasets derived from the AF Services, but excluding any generic reports generally made available by AppsFlyer to all of its customers (e.g. benchmark reports).
21. “Restricted Data” shall mean: (i) precise location data (e.g. addresses, precise GPS data); (ii) financial information (e.g. bank account numbers, credit/debit card information ); (iii) any health or medical information; (iv) government IDs (e.g. driver’s license, passport, national ID, social security, TIN or EIN numbers); (v) any special or sensitive categories of data as defined under applicable law (e.g. biometric or genetic data, information about ones religious beliefs, race, sex life or orientation); or (vi) any information other than Permitted End User Data that can directly identify an individual.
22. “AF Services” shall mean the products and services made available by AppsFlyer that are ordered by Joint Customer, some or all of which are available to Agency for the Purpose.
23. “Service User” shall mean such individuals who are authorized by Agency to use the AF Services and to whom Joint Customer (or AppsFlyer at Joint Customer’s request) has supplied user credentials.
24. “Third Party Content” shall mean any content, materials or images provided by a third party that is contained in the AF Service.
25. “Third Party Sites” shall mean third party websites, advertisements and/or any third party services.
Account and Access to the AF Services.
1. Account and Service Users. In order to access and use the AF Services, the Joint Customer will be required to select and enable the Agency to access the AF Services. For this purpose, Agency may be required to set up an Agency Account. Agency must ensure that all Agency Account registration information (e.g. company name, address, contact details, billing details if relevant) is accurate and up to date. Agency shall promptly update and/or notify AppsFlyer if there is any change in its registration information. Agency may set up Service Users under its Account and Service User credentials cannot be shared by more than 1 (one) person but may be re-assigned to new Service Users. Agency and Service Users will be required to choose appropriate log-in credentials and passwords in order to secure the Agency Account. Agency and Services Users shall take appropriate measures to protect the Agency Account access credentials. Agency shall promptly notify AppsFlyer if Agency becomes aware of any security breach of the Agency Account or the compromise of any Agency Account access credentials. Agency shall be responsible for managing its Service Users, including removing and/or updating Service User contact information and credentials. Agency shall be responsible and liable for ensuring its Service Users’ compliance with the terms and conditions of this Agreement. Use of such Agency Account by Agency is non-transferable. Agency is restricted from using the AF Services for any purpose other than the Purpose, as described in this Agreement and in accordance with the instructions of the Joint Customer.
2. Applications. Agency may use the AF Services only in connection with the Joint Customer’s Applications which have been authorized by the Joint Customer to be used for the Agency Services. Agency shall not use the Agency Account with respect to any third party applications.
3. Fair Usage Policy. Use of and consumption of any feature or functionality of the AF Service that is provided on an ‘Unlimited’, ‘free’ or similar basis, is subject to fair and reasonable use. If AppsFlyer reasonably determines that Agency has made unfair or unreasonable use of the AF Services or has otherwise used the AF Service in a manner that creates an excess burden on the AF Services, AppsFlyer shall have the right to limit, restrict or suspend access or use of such AF Service upon providing prior notice to Joint Customer and Agency until such time that Agency agrees to correct its usage or upgrade its subscription. For the avoidance of doubt, managing media campaigns on behalf of Joint Customers that generates an abnormal amount of clicks and impressions may be deemed a breach of this Section 2(c).
Access and Restrictions.
1. Access Rights. Subject to the terms of this Agreement, AppsFlyer grants Agency a worldwide, limited, non-exclusive, non-sublicensable, non-transferable, royalty-free, fully revocable , royalty-free right, for the duration of the Term, to: (i) access and use the AF Services through the interface made available by AppsFlyer; and if applicable (ii) use the Developer Tools, in each case, in accordance with the Documentation and solely for Joint Customers internal business needs, all solely for the Purpose.
2. Restrictions. Agency represents and warrants that it shall not, and shall not permit any third party to: (a) except to the extent permitted by applicable law, disassemble, reverse engineer, decompile the AppsFlyer Properties or attempt to find the underlying code of the AppsFlyer Properties or any part thereof; (b) copy, modify, adapt, translate or otherwise create derivative works of the AppsFlyer Properties or any part thereof; (c) rent, lease, sell, resell, time-share, license, sublicense, assign, or otherwise transfer rights in the AppsFlyer Properties to any third party; (d) remove any proprietary notices or bypass any security measure of AppsFlyer with respect to the AppsFlyer Properties; (e) send, upload, transmit, or store any infringing, fraudulent, threatening, libelous, defamatory, or otherwise unlawful or tortuous material or Joint Customer Content, including material or Joint Customer Content that violates third party rights or otherwise use the AppsFlyer Properties to link to or redirect to any such materials or Joint Customer Content; (f) send material or Joint Customer Content containing software viruses, worms, trojan horses, or other harmful or malicious computer code, files, scripts, agents, or programs; (g) attempt to gain unauthorized access to the AF Service or its related systems or networks; (h) distribute or use the AppsFlyer Properties or any part thereof in any manner not authorized under this Agreement or the Documentation or that violates any applicable laws; (i) use or access the AppsFlyer Properties to build any competitive product, to evaluate the AppsFlyer Properties for any competitive or benchmarking purposes, or to copy any ideas, features, functions or content (including images) of the AppsFlyer Properties; and (j) use the AppsFlyer Properties or any part thereof in any fraudulent, illegal or abusive manner. Furthermore, Agency shall not and shall not permit any third party to: (a) modify or otherwise manipulate any AppsFlyer relinks (including AppsFlyer’s Onelink) inserted into advertisements in a manner that disrupts the ability to effectively and/or accurately perform attribution; (b) manipulate or otherwise harm the measurement and attribution services provided by AppsFlyer to AppsFlyer’s customers, including, through any action that results in false and/or fraudulent conversions; or (c) take any action intended to fraudulently boost conversion rates of any media campaign served by an Integrated Partner or its agents or otherwise managed by Agency.
Integrated Partners.
1. The AF Services enable Joint Customers to connect with and/or activate Integrated Partners in order to facilitate the upload, storage and sending of certain data (e.g. data or content related to Joint Customer’s marketing campaigns, conversion results, creatives, End User Data, events) between Joint Customer and the Integrated Partners (“Campaign and Analytics Data”). Agency acknowledges and agrees: (i) that, to the extent it has the ability to configure the integration with the Integrated Partner, Agency has obtained all necessary consents, including from the Joint Customer, to configure the AF Services to connect and/or integrate with any specific Integrated Partner and to enable Campaign and Analytics Data to be sent to the Integrated Partner and/or received from the Integrated Partner in accordance with the Documentation; (ii) to only send Integrated Partners such Campaign and Analytics Data (including End User Data) that the Joint Customer and Integrated Partner permits pursuant to any terms or agreements between Integrated Partner and Joint Customer and/or Agency; (iii) process and use the Campaign and Analytics Data only as permitted by Joint Customer and subject to any additional restrictions that may be imposed by the Integrated Partner.
Data Protection and Privacy.
1. Restricted Data. AppsFlyer strictly prohibits using the AF Services or any Developer Tools to collect, store, upload, process or transmit to AppsFlyer, or through the AF Services to any third party, any Restricted Data. Agency shall not, and shall not cause the Joint Customer to, configure the AF Services or Developer Tools to enable the collection, transmission, or storage of Restricted Data on or through the AF Services.
2. Children. Agency shall configure the Developer Tools and AF Services appropriately to ensure compliance with applicable Children data protection and privacy laws and any platform policies or third party agreements with Integrated Partners that Customer is subject to. Without derogating from the generality of the foregoing, Agency shall configure the AF Services to ensure that End User Data from Children is not transmitted to any Integrated Partner except where both the Integrated Partner’s service is specifically tailored to support and process End User Data from Children and the Integrated Partner permits Agency to transmit such End User Data related to Children to such Integrated Partner. For more information, Agency should review and implement the appropriate controls as provided in the AppsFlyer Kids App Implementation Guide.
3. Agency Obligations. Except as may otherwise be agreed between Agency and Joint Customer, Agency further agrees to use the Joint Customer Data solely on behalf of the Joint Customer (i.e. in the capacity of a Service Provider as such term is defined in the CCPA and as a Data Processor as such terms are defined under the GDPR), for the Purpose, and in accordance with the terms agreed to between Joint Customer and Agency. Further, Agency shall configure the AF Services and Developer Tools in such a manner that ensures compliance with any platform policies and terms (e.g. Apple and Google Store) applicable to Joint Customer and/or Agency. In no event will AppsFlyer be liable for any acts or omissions of the Agency related to its use and processing of the Joint Customer Data and Agency shall indemnify and hold harmless AppsFlyer (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees) which AppsFlyer may suffer or incur in connection with any claim, demand, action or other proceeding by any third party arising from Agency’s acts or omissions relating to its use and/or processing of Joint Customer Data via the AF Services.
4. Data Protection Laws. Agency agrees to comply with any data protection and privacy laws that may be applicable to its use and processing of the Joint Customer Data and shall be responsible for obtaining all written consents from Joint Customer to use and process the Joint Customer Data via the AF Services. Without derogating from the generality of the foregoing, Agency shall comply with its obligations under the European Union General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”), including by: (i) imposing appropriate confidentiality obligations on such personnel authorized to access Joint Customer Data; and (ii) implementing appropriate technical and organizational measures to protect Joint Customer Data which it processes against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure, access, or processing.
Ownership and Intellectual Property.
1. AppsFlyer Properties. AppsFlyer owns and shall retain all right, title and interest in and to the AppsFlyer Properties. Nothing herein shall be interpreted to provide Customer any rights in the AppsFlyer Properties except the limited rights explicitly set forth herein.
2. Agency Ownership. Agency owns and shall retain all right, title and interest in and to the Agency Services. Joint Customer owns and shall retain all right, title and interest in and to the Joint Customer Properties.
3. Feedback. If Agency provides AppsFlyer with any Feedback, then, Agency hereby grants AppsFlyer and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and incorporate into its AF Services such Feedback. Agency acknowledges and agrees that AppsFlyer may use all such Feedback without restriction.
Confidentiality
1. Definition. During the Term, each party may disclose to the other party Confidential Information. Confidential Information shall not include information that Receiving Party can show: (a) was already lawfully known to, or independently developed by, Receiving Party without access to, or use of, Confidential Information, (b) was received by Receiving Party from any third party without restrictions, (c) is publicly and generally available, free of confidentiality and non-use restrictions; or (d) is required to be disclosed by law and/or regulation or is requested in the context of a law enforcement investigation, provided that, to the extent permitted by applicable law, the Receiving Party provides the Disclosing Party with prompt notice of such requirement and reasonably cooperates with Disclosing Party to obtain an order protecting the information from disclosure and discloses only such minimal portion of the Confidential Information required to be disclosed. In addition, the terms of this Agreement may not be disclosed by either party, without the other party's prior written consent, except during due diligence in the course of a merger, acquisition, investment or sale of all or substantially all of a party’s shares or assets. Agency hereby agrees that AppsFlyer may use and/or disclose Agency’s Confidential Information if and to the extent such Confidential Information is required to be disclosed in order to provide the AF Services to Agency and/or the Joint Customer in accordance with the terms of this Agreement.
2. Duty of Care. The parties agree to hold all Confidential Information in strict confidence and not to disclose such Confidential Information to third parties other than Affiliates, employees, agents, consultants or subcontractors of a party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement. The parties agree to advise and obtain undertakings from their respective Affiliates, employees, agents, consultants and subcontractors of their obligations to keep all Confidential Information confidential and each party shall remain liable for any breach of confidentiality and non-use obligations by any of the foregoing. Each party agrees to treat the Confidential Information it receives with the same degree of care as it treats its own Confidential Information and in any event, with no less than a reasonable degree of care. As between the parties, each party retains all ownership rights in and to its Confidential Information.
3. Remedies. Each party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages. Accordingly, a party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings.
4. Return of Data. Upon termination or expiration of this Agreement and upon the Disclosing Party’s written request, the Receiving Party shall, within thirty (30) calendar days from the date of such request, return or destroy all Confidential Information received from the other party, or created or received by a party on behalf of the other party, which are in such party’s possession. The non-disclosure and non-use obligations set forth in this Section 8 shall survive the termination or expiration of this Agreement for a period of 5 (five) years except that any trade secrets (including, but not limited to source codes, technology, algorithms, and protocols) shall be deemed and treated as Confidential Information for as long as such information continues to be protectable as trade secret information under applicable laws.
Term and Termination.
1. This Agreement will enter into effect on the Effective Date and will continue until it has been duly terminated in accordance with the terms hereof (the “Term”). Either party may terminate this Agreement at any time by providing 30 days advanced written notice to the other party, without any entitlement or obligation to any compensation. Upon a breach of any provision hereof by a party, the other party may terminate this Agreement if such breach remains uncured for a period of 10 days from notice of such breach or with immediate effect if such breach is deemed by the non-breaching party as incurable. This Agreement may be terminated with no notice period by either party: (i) at any time that the other party is liquidated or otherwise ceases the conduct of business in the ordinary course; or (ii) if the other party seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, or if any such proceeding is instituted against the other. Without limiting any remedies available to AppsFlyer under this Agreement or applicable law, AppsFlyer reserves the right to suspend performance of the AF Services and to suspend the Agency’s Account if it reasonably deems that Agency has not fulfilled any of its obligations under this Agreement. Upon termination of this Agreement, all licenses and rights granted under this Agreement shall terminate forthwith. Notwithstanding any termination of this Agreement, any terms which by their nature should survive termination or expiration of the Agreement shall survive and continue to be in effect in accordance with their terms.
Warranties.
1. Mutual Warranties. Each party represents and warrants that: (a) it is duly organized under the law applicable to it and has sufficient authority to enter into this Agreement; (b) the person entering into this Agreement is authorized to sign this Agreement on behalf of such party; (c) the execution and performance under this Agreement does not conflict with any contractual obligations such party has to any third party; and (d) it shall comply with all applicable federal, state, local, or other laws and regulations applicable to its obligations under this Agreement.
2. Agency Warranties. The Agency represents and warrants that: (i) the Agency Services do not, to the best of its knowledge, infringe the intellectual property rights or privacy rights of any third party; (ii) it will not knowingly introduce into the AF Services and AppsFlyer’s systems any worms, viruses, spyware, adware or other malicious or intrusive software; and (iii) it has all permissions, authority, licenses, and consents required to provide the Agency Services to the Joint Customer and to enable the AF Services to access, download and/or upload Joint Customer Data to Agency’s Account for the Purpose in accordance with the terms of this Agreement.
3. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, APPSFLYER MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND IT SPECIFICALLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. AGENCY ACCEPTS AND ACKNOWLEDGES THAT THE DEVELOPER TOOLS, AF SERVICES, AND REPORTS ARE PROVIDED “AS IS” AND “AS AVAILABLE”, EXCEPT AS EXPRESSLY PROVIDED HEREIN. APPSFLYER FURTHER DISCLAIMS ANY WARRANTY THAT THE AF SERVICES, DEVELOPER TOOLS OR REPORTS WILL MEET AGENCY’S AND/OR JOINT CUSTOMER’S NEEDS, BE ERROR FREE, OR THAT THE OPERATION OF THE AF SERVICE WILL BE UNINTERRUPTED. APPSFLYER SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, RELIABILITY, OR COMPLETENESS OF ANY DATA OR REPORT GENERATED OR MADE AVAILABLE THROUGH THE AF SERVICE. AGENCY ASSUMES SOLE RESPONSIBILITY FOR ANY ACTIONS, CONCLUSIONS OR INFERENCES DRAWN FROM ITS USE OF THE AF SERVICE OR ANY REPORTS GENERATED BY OR THROUGH THE AF SERVICE. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT. TO THE EXTENT THAT APPSFLYER CANNOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM REQUIRED UNDER SUCH LAW.
Indemnification.
1. Indemnification. Agency shall defend, indemnify and hold harmless AppsFlyer (and its Affiliates, officers, directors and employees) (the “Indemnified Party”) from and against any and all direct damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees) which the Indemnified Party may suffer or incur in connection with any claim, demand, action or other proceeding by any third party arising from: (a) Agency’s breach of its representation and warranties hereunder; (b) breach of Agency’s obligations under Section 6 (Data Protection and Privacy) of this Agreement; (c) a breach by Agency of Section 5 of this Agreement (Integrated Partners); and/or (d) any agreement with a Joint Customer regarding the provision of AF Services to the Agency.
2. Procedure. In the event of a claim that falls under the indemnification obligations of either party, as abovementioned, the Indemnified Party shall: (i) provide the Agency with prompt written notice of any claim for which indemnification is sought (provided that the Indemnified Party’s failure to notify the Agency will not diminish the Agency’s obligations under this Section 11, except to the extent that the Agency is materially prejudiced as a result of such failure); (ii) cooperate fully with the Agency (at the Agency’s expense); and (iii) allow the Agency to control the defense (except where unreasonable) and settlement of such claim, provided that no settlement may be entered into without the consent of the Indemnified Party if such settlement would require any or admission of liability or action on the part of the Indemnified Party other than to cease using any allegedly infringing or illegal content or services. The Indemnified Party will, at all times, have the option to participate in any matter or litigation through counsel of its own selection at its own expense.
Limitation of Liability. IN NO EVENT SHALL APPSFLYER BE LIABLE TO THE AGENCY FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, GOODWILL, OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS AGREEMENT WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, TORT, OR OTHERWISE, AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, APPSFLYER’S TOTAL CUMULATIVE LIABILITY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF, OR RELATING TO, THIS AGREEMENT SHALL NOT EXCEED US$10,000.
Third Party Websites and Content. The AF Services may link or direct to Third Party Sites or contain Third Party Content. Agency hereby acknowledges and agrees that AppsFlyer has no control over such Third Party Sites and Third Party Content and that AppsFlyer is not responsible for the availability, accuracy, and/or correctness of Third Party Sites or Third Party Content, and does not endorse and is not responsible or liable for any service, content, advertisements, products, or any materials available by third parties or on and/or through such Third Party Sites. Agency further acknowledges and agrees that AppsFlyer shall not be responsible or liable, directly or indirectly, for any damage or loss whatsoever caused, or alleged to be caused, by or in connection with the use of, or reliance on, any such Third Party Content, or service or products made available by third parties or available on or through any Third Party Sites. Most Third Party Sites provide legal documents, including terms of use and privacy policies, governing the use of each such Third Party Sites. It is advisable and AppsFlyer encourages Agency to read these legal documents carefully before using any such Third Party Sites or any third party services.
Publicity. Agency agrees that AppsFlyer may display Agency’s name and logo on AppsFlyer’s website, Partner Marketplace and other marketing materials.
Anti-Corruption. Agency shall comply with all anti-bribery and anti-corruption laws applicable to this Agreement. Agency, to the best of its knowledge, has taken or has received or will take or receive any payment, property, gifts or anything else of value in connection with this Agreement (excluding reasonable gifts and entertainment in the ordinary course of business).
Trade Sanctions. Agency represents that it (or any related/controlling company or controlling shareholder individual) is not the subject of any US, UK, EU or UN sanctions and is not named on any restricted party or similar sanctions list. Agency will not, and will not permit any Service User to, access or use any AF Services in a U.S.-embargoed or sanctioned country or region (currently Cuba, Iran, North Korea, Syria, Crimea, Luhansk, Donetsk). AppsFlyer reserves the right to restrict access to the AF Services from other countries where AppsFlyer is not permitted to offer or provide the AF Services due to regulations applicable to it or to terminate the Agreement to the extent any Agency comes under sanctions during the Term.
Codes of Conduct. Each party shall conduct its business in an ethical manner in accordance with terms that are substantially similar to the terms set forth in AppsFlyer’s Codes of Conduct available here.
Miscellaneous.
1. Entire Agreement. This Agreement represents the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties, whether written or oral, regarding the subject matter hereof. For clarity, the provisions of this Agreement supersede any earlier non-disclosure or confidentiality agreements between the parties. Any other terms contained or referenced in any of Agency’s ordering documents, purchase orders, “click-wrap”, “browse-wrap”, codes of conduct or similar document shall have no force or effect between the parties. Except as expressly set forth herein, this Agreement may not be modified or amended except in writing executed by both parties. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The parties agree that any electronic signature shall have the same legal validity and enforceability as a manually executed signature to the fullest extent permitted by applicable law.
2. Amendment. AppsFlyer may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. AppsFlyer will provide notice (through the AppsFlyer dashboard or by email to the Account admin email on record) of any material amendments not less than thirty (30) days prior to the effective date of any such amendment. Agency’s continued use of the AF Services following the effective date shall be deemed as Agency’s consent to any such amendment.
3. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
4. No Waiver. All waivers must be in writing. A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition but shall apply solely to the instance to which such waiver is directed.
5. Assignment. Neither party may assign any of its rights and/or obligations under this Agreement without the prior written consent of the other party, such consent not to be required in the event of an assignment by AppsFlyer to an Affiliate or a purchaser of all or substantially all of AppsFlyer’s assets or share capital. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
6. Validity. If any part of this Agreement shall be invalid or unenforceable, such part shall be interpreted to give the maximum force possible to such terms under applicable law and such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of this Agreement which shall remain in full force and effect.
7. Notices. All notices under this Agreement shall be in writing and shall be deemed to have been received by the other Party within seven (7) days from the time it was sent in registered mail. If the message was sent by electronic mail, it shall be deemed to have been received within one (1) business day from the time it was sent. The addresses to which the parties should direct notices under the Agreement are set forth in the applicable Order Form.
8. Governing Law. This Agreement shall be governed by and construed under the laws of New York, USA without reference to its conflict of law principles. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in New York City, New York, USA.