1. BACKGROUND. The parties acknowledge that they have entered into this Agreement to allow Subscriber to order and use one (or more) of the Vungle Offerings.
2. DEFINITIONS. Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
2.1 “Addendum” or “Special Terms” means an addendum to this Agreement that specifies unique and additional terms governing the use of a specific Vungle Offering.
2.2 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Subscriber or any Authorized Users to access a given Vungle Offering.
2.3 “Applicable Privacy Laws” means, to the extent applicable to the Services, all worldwide data protection and privacy laws and regulations, including where applicable, the California Consumer Privacy Act Cal. Civ. Code §§ 1798.100 et seq. (“CCPA”), the General Data Protection Regulation (“GDPR”), the Data Protection Act 2018, and any U.S. state or national data protection laws as superseded, amended or replaced.
2.4 “Authorized User” means each of Subscriber’s employees who are authorized to access and use the Vungle Offering pursuant to Subscriber’s rights under this Agreement.
2.5 “Subscriber Information” means data and information provided or submitted by Subscriber and/or its end Authorized Users through a Vungle Offering.
2.6 “Vungle Materials” means the Vungle Offerings, documentation and any reports generated therefrom, and all worldwide intellectual property rights in each of the foregoing but excluding Subscriber Information.
2.7 “Order” means an order form that is signed by both parties ordering access to a Vungle Offering and references this Agreement, or otherwise where Subscriber selects the applicable Vungle Offering, the term of access and corresponding pricing (if any, for any paid Vungle Offering) during account creation or onboarding via the Vungle portal.
2.8 “Personal Data” means any personal data or personally identifiable information provided by Subscriber to Vungle in connection with use of the Vungle Offering that is: (A) nonpublic personal information, (B) information covered by state or federal law which requires the protection of information related to natural persons, and (C) other personal information identifiable to a natural person protected now or in the future by applicable state or federal law.
2.9 “Vungle Offering” means a given Vungle software-as-a-service offering (e.g., AlgoLift, Game Refinery, and/or Tresensa) identified in any Order that allows Authorized Users to access certain features and functions as specified in the applicable Addendum, together with any relevant user instructions or related user documentation.
2.10 “Processing” (including “Process”, “Processes”, “Processed”, and other variants of the term) means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, collation, recording, organization, storage, adaptation or alteration, retrieval, consultation, analysis, interpretation, compilation, aggregation, use, disclosure by transmission, dissemination, viewing, copying, deleting, or otherwise making available, alignment or combination, blocking or erasure, or destruction.
2.11 “Services” means the provision of access to the Vungle Offering as hosted by Vungle under this Agreement as set forth in an Order.
3. SERVICES. Subject to the terms and conditions of this Agreement, including, where applicable, Subscriber’s payment of the fees set forth in an Order for any paid Vungle Offering (“Fees”), Vungle will provide Subscriber and its Authorized Users with the Services set forth on the applicable Order during the term set forth on the Order. On or as soon as reasonably practicable after the Effective Date, Vungle will provide to Subscriber the necessary passwords, security protocols, policies, network links and/or connections and Access Protocols to allow Subscriber and its Authorized Users to access the Vungle Offering in accordance with the provided Access Protocols. Subscriber is responsible for keeping all Access Protocols issued to Subscriber and its Authorized Users confidential and secure and will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Vungle Offering. Subscriber will notify Vungle promptly of any such unauthorized use known to Subscriber. Subject to the terms and conditions of this Agreement, Vungle grants to Subscriber a non-exclusive, non-transferable (except as permitted under Section 13.5 (No Assignment)), non-sublicensable license during the Term (as defined below), solely for Subscriber’s business purposes and in accordance with the limitations (if any) set forth in the Order and applicable Addendum, to access and use the Vungle Offering (and permit its Authorized Users to access and use the Vungle Offering) in accordance with the applicable documentation provided by Vungle.
4. INTELLECTUAL PROPERTY; PROPRIETARY RIGHTS.
4.1 Subscriber Information. The Subscriber Information is the exclusive property of Subscriber and its Authorized Users. All rights in and to the Subscriber Information not expressly granted to Vungle in this Agreement are reserved by Subscriber and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Vungle regarding the Subscriber Information or any part thereof.
4.2 Vungle Materials. The Vungle Materials are the exclusive property of Vungle and its suppliers. All rights in and to the Vungle Materials not expressly granted to Subscriber in this Agreement are reserved by Vungle and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Subscriber regarding the Vungle Materials, or any part thereof.
4.3 Service Restrictions. Subscriber will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Vungle Materials or Service except as expressly allowed herein; (b) modify, adapt, alter or translate the Vungle Materials; (c) sublicense, lease, sell, resell, rent, loan, distribute or transfer the Vungle Materials for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Vungle Materials except as permitted by law; (e) interfere in any manner with the operation of the Vungle Materials, or the hardware and network used to operate the Vungle Materials; (f) modify, copy or make derivative works based on any part of the Vungle Materials; (g) access or use the Vungle Materials to build a similar or competitive product or service; (h) attempt to access the Vungle Materials through any unapproved interface; or (i) otherwise use the Vungle Materials in any manner that exceeds the scope of use expressly permitted in this Agreement or in a manner inconsistent with applicable law. Subscriber will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Vungle or its licensors from any Vungle Materials.
4.4 Aggregated/Anonymized Data. Subscriber acknowledges and agrees that notwithstanding anything to the contrary, Vungle may use and disclose Subscriber Information in aggregated or anonymized form: (a) to improve the Services and Vungle’s related products and services; (b) to provide analytics and benchmarking services; or (c) to generate and disclose statistics regarding use of the Services; provided, however, that such use shall in no way identify Subscriber, Authorized Users or any Subscriber Information.
4.5 Feedback. Subscriber hereby grants to Vungle a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including Authorized Users, relating to the Services. Vungle will not identify Subscriber as the source of any such feedback.
5. DATA SECURITY; PRIVACY.
5.1 Data Security. Vungle shall maintain reasonable and appropriate data safeguards and procedures designed to prevent the authorized use or disclosure of Subscriber Information as required under Applicable Privacy Laws (“Data Safeguards”). During the Term, Vungle will maintain physical, administrative and technical security measures designed to ensure the availability, integrity and confidentiality of the Subscriber Information. Vungle will periodically maintain archives and back-ups of Subscriber Information in accordance with Vungle’s generally applicable disaster recovery and business continuity procedures and industry standards. Subscriber Information may be stored on media or hardware containing other Vungle Subscribers’ data both during and after the Term, provided such media and hardware are subject to the Data Safeguards.
5.2 Audits. No more than once per calendar year, during the Term and for one (1) year thereafter, and upon fifteen (15) business days’ prior notice from Subscriber, Vungle will provide Subscriber or its designee with access to information so that Subscriber may examine, assess, and evaluate the Data Safeguards.
5.3 Privacy. Without limiting Subscriber’s obligations under Sections 3 (Services) and 4.1 (Subscriber Information), each party shall comply with all Applicable Privacy Laws in the performance of their respective obligations under this Agreement with respect to the processing of Personal Data.
5.4 Data Processing Agreement. Before providing to Vungle or enabling Vungle to Process any Personal Data that is subject to any Applicable Privacy Laws, Subscriber will enter into a Data Processing Agreement (“DPA”) with Vungle in the form provided by Vungle. If Subscriber has not entered into such DPA, Subscriber represents, warrants and covenants that no Personal Data Processed by Vungle under this Agreement is subject to Applicable Privacy Laws. Any Personal Data that is subject to Applicable Privacy Laws shall be governed by the DPA and shall not be Confidential Information (defined herein). In the event of a conflict between any provision of the DPA and this Agreement, the provision providing the higher level of privacy or data protection shall govern.
6. FEES AND EXPENSES; PAYMENTS.
6.1 Fees. In consideration for the access rights granted to Subscriber and the Services performed by Vungle under this Agreement, Subscriber will pay to Vungle the Fees as set forth in the applicable Order. Except as otherwise provided in the Order, all Fees are billed in advance and payable within thirty (30) days of the date of the invoice. Vungle reserves the right to modify the Fees payable hereunder upon written notice to Subscriber at least sixty (60) days prior to the end of the then-current term. Vungle reserves the right (in addition to any other rights or remedies Vungle may have) to discontinue the Vungle Offering and suspend all Authorized Users’ and Subscriber’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. For the avoidance of doubt, Subscriber shall continue to incur and be responsible for all Fees due for the Services during any such period of suspension or discontinuation. Subscriber will maintain complete, accurate and up-to-date Subscriber billing and contact information at all times.
6.2 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Subscriber will be responsible for payment of all such taxes (other than taxes based on Vungle’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Vungle Offering to Subscriber. Subscriber will make all payments of Fees to Vungle free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Vungle will be Subscriber’s sole responsibility, and Subscriber will provide Vungle with official receipts issued by the appropriate taxing authority, or such other evidence as the Vungle may reasonably request, to establish that such taxes have been paid.
6.3 Interest. Any amounts not paid when due will bear interest at the rate of one percent (1%) per month, or the maximum legal rate if less, from the due date until paid.
7. SUBSCRIBER RESPONSIBILITIES. Subscriber is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Subscriber Information. Subscriber will obtain all licenses, consents and permissions needed for Vungle to use the Subscriber Information to provide the Services to Subscriber and Authorized Users as contemplated by this Agreement.
8. WARRANTIES AND DISCLAIMERS.
8.1 Mutual Warranties. Each party represents and warrants that (a) it has all rights, authorizations, consents, and permission necessary to perform its obligations or grant the rights and licenses hereunder and (b) it shall perform all of its obligations and exercise all of its rights hereunder in accordance with all applicable laws, rules, regulations.
8.2 Additional Vungle Warranty. Vungle represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards.
8.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE VUNGLE MATERIALS ARE PROVIDED “AS IS,” AND VUNGLE MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. VUNGLE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE VUNGLE MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE. VUNGLE PROVIDES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES REGARDING RESULTS OR RECOMMENDATIONS MADE OR OBTAINED FROM OR THROUGH THE VUNGLE MATERIALS, INCLUDING WITHOUT LIMITATION THE ACCURACY, SAFETY, OR APPROPRIATENESS THEREOF, OR THAT ANY OF THE FOREGOING WILL BE ERROR FREE OR WILL PREVENT, AVOID, OR REDUCE ANY CHANCE OR RATE OF ILLNESS, CONTAGION, RISK, OR LIABILITY.
9. LIMITATION OF LIABILITY
9.1 Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
9.2 Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY SUBSCRIBER TO VUNGLE DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL VUNGLE’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY OR A BREACH OF SECTION 7 OF THIS AGREEMENT.
9.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 9 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
10.1 Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Vungle Materials and all enhancements and improvements thereto will be considered Confidential Information of Vungle.
10.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Subscriber) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Vungle). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
10.3 Exceptions. The confidentiality obligations set forth in Section 10.2 (Protection of Confidential Information) will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
11.1 By Vungle. Vungle will defend at its expense any suit brought against Subscriber, and will pay any settlement Vungle makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Vungle Offering infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Vungle Offering becomes, or in Vungle’s opinion is likely to become, the subject of a claim of infringement, Vungle may, at Vungle’s option: (a) procure for Subscriber the right to continue using the Vungle Offering; (b) replace the Vungle Offering with non-infringing software or services which do not materially impair the functionality of the Vungle Offering; (c) modify the Vungle Offering so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Subscriber will immediately cease all use of the Vungle Offering and Documentation. Notwithstanding the foregoing, Vungle will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Vungle Offering not in accordance with this Agreement or as specified in the relevant user instructions or related user documentation; (ii) any use of the Vungle Offering in combination with other products, equipment, software or data not supplied by Vungle; or (iii) any modification of the Vungle Offering by any person other than Vungle or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This section states the sole and exclusive remedy of Subscriber and the entire liability of Vungle, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
11.2 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
12. TERM AND TERMINATION.
12.1 Term. This Agreement will begin on the Effective Date and continue in full force and effect as long as any Order remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”). Unless otherwise stated in the applicable Order, the term of an Order will begin on the effective date of the Order and continue in full force and effect for one (1) year, unless earlier terminated in accordance with the Agreement. Thereafter, the Order will automatically renew for additional terms of one (1) year unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then-current term.
12.2 Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
12.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 10 (Confidentiality); and (c) any amounts owed to Vungle under this Agreement will become immediately due and payable. Sections 1 (Background), 2 (Definitions), 4 (Intellectual Property; Proprietary Rights); 5 (Data Security; Privacy); 6 (Fees and Expenses; Payments), 9.3 (Disclaimer), 9 (Limitation of Liability), 10 (Confidentiality), 12 (Indemnification), 12.3 (Effect of Termination), and 13 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
12.4 Data Extraction. For Vungle (20) days after the end of the Term, as applicable, Vungle will make Subscriber Information available to Subscriber through the Vungle Offering on a limited basis solely for purposes of Subscriber retrieving Subscriber Information, unless Vungle is instructed by Subscriber to delete such data before that period expires. After such period, Vungle will discontinue all use of Subscriber Information and destroy all copies of Subscriber Information in its possession.
13.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the Commonwealth of Virginia, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The parties hereby expressly consent to the exclusive personal jurisdiction and venue in the state and federal courts of Virginia for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
13.2 Export. Subscriber agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Vungle, or any products utilizing such data, in violation of the United States export laws or regulations.
13.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
13.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
13.6 Compliance with Law. Subscriber will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services, Report and Documentation.
13.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, epidemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
13.8 Independent Contractors. Subscriber’s relationship to Vungle is that of an independent contractor, and neither party is an agent or partner of the other. Subscriber will not have, and will not, represent to any third party that it has, any authority to act on behalf of Vungle.
13.9 Notices. All notices required or permitted under this agreement must be delivered in writing, if to Vungle, by emailing Legal@Vungle.com and if to Subscriber by emailing the Subscriber Point of Contact email address listed in Subscriber’s account information, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address provided to Vungle during registration or as set forth on an Order by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
13.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
13.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this
Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Subscriber and the Vungle.
[End of Terms]