Vungle Inc., a Liftoff Mobile, Inc. company
This Monetize - SDK License and Publisher Terms (“Agreement ”) is made available by Vungle Inc. (“Liftoff ”). By downloading or using the software development kit, including and solely as enabled by Liftoff, available for download on Liftoff’s website as of the Effective Date, and any other software that may be provided by Liftoff to Developer with the software development kit, including any updates thereto (“Vungle SDK ”) and Liftoff’s hosted video advertising system, which supports video advertisement insertion within mobile applications, and related advertisement reporting tools (“Monetize Platform”), you and any company, entity, or organization on behalf of which you are accepting this Agreement (“Developer ”) hereby agrees to be bound by all terms and conditions of this Agreement effective as of the date you first access the Vungle Dashboard (“Effective Date ”), and you represent and warrant that you are an authorized representative of Developer with the authority to bind Developer to this Agreement.
License Grant: Subject to the terms and conditions of this Agreement, Liftoff grants Developer a non-exclusive, non-transferable, non-sublicensable, worldwide license to: (a) integrate the Vungle SDK with the mobile applications owned and/or controlled by Developer, including all content, images, music and text contained therein, that Developer wishes to use with the Vungle SDK and Monetize Platform (“Developer Apps ”) solely for internal use; (b) use, reproduce and distribute certain portions of the Vungle SDK as required for Developer’s distribution of Developer Apps; provided that, any distribution to an end user will be subject to terms that protect the Vungle SDK in a manner at least as protective as set forth herein; and (c) use the Vungle SDK and Monetize Platform to have video advertisements, sourced by or on behalf of Liftoff, which are routed and/or served by the Monetize Platform to the Developer Apps (“Liftoff Ads ”) inserted within Developer Apps pursuant to this Agreement.
SDK Updates: Liftoff periodically releases new versions of, or updates to, the Vungle SDK which may contain new features and fixes (each a, “ SDK Update”). Each SDK Update will be presented to Developer within the Monetize Platform dashboard, and Developer is encouraged to download and integrate each SDK Update within the Developer Apps. Each SDK Update shall be subject to the terms and conditions of this Agreement. Liftoff may sunset versions of the Vungle SDK that are older than 24 months.
License Restrictions: Except as expressly provided in this Agreement, Developer shall not (and shall not allow any third party to): (a) decompile, reverse engineer, disassemble, modify, adapt, create derivative works of, copy or distribute the Vungle SDK or Monetize Platform, (b) modify, remove, or obscure any copyright, trademark, patent or other proprietary notices or legends from the Vungle SDK or Monetize Platform; (c) copy, distribute, rent, lease, lend, sublicense, transfer or make the Vungle SDK or Monetize Platform available to any third party, (d) use the Vungle SDK or Monetize Platform to develop, upload, or transmit any software viruses or other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any software or hardware, or (e) use the Vungle SDK, Monetize Platform, or any data collected, received, or provided access via the Vungle SDK or Monetize Platform, except as expressly set forth in this Agreement, including to re-identify an individual end user.
Third Party Software: Vungle’s SDK may include third party software or open source software (“Third Party Software”), such as ad measurement brand safety, and fraud detection. Developer acknowledges and agrees that the applicable third party policies required by such third parties’ service available via the Monetize Platform, including without limitation, any header bidder platform, mediation layer, demand service provider (“DSP ”), or App Store, and its corresponding terms of services, privacy policies, ad/content guidelines, and similar policies (“Third Party Policies ”) apply to and govern Developer’s use of the Third Party Software. Open source software utilized in the Vungle SDK is attributed in the SDK github files.
Liftoff IP: All ownership rights, title, and interest in and to the Vungle SDK (excluding the Third Party Software) and Monetize Platform, including all intellectual property rights therein, as such may be modified, upgraded, or enhanced from time to time (“ Liftoff Property”) will remain and belong exclusively to Liftoff. Liftoff reserves all rights not expressly granted to Developer herein.
Developer IP :Developer shall retain all ownership rights, title and interest in and to the Developer Apps, including all intellectual property rights therein, as such may be modified, upgraded or enhanced from time to time. If Developer elects to provide any suggestions, comments, improvements, ideas or other feedback or materials to Liftoff (collectively, “Feedback”), Developer hereby grants Liftoff the right to freely use, copy, disclose, license, distribute and exploit any such Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.
Liftoff Insertion &Sale of Ads: Developer hereby grants Liftoff the right to sell, and have sold, advertisement inventory in the Developer Apps, and to insert Liftoff Ads within such inventory. Developer agrees that in connection with Liftoff Ads, Liftoff may access or call to the Developer Apps, or the servers that make them available, and cause the routing, transmission, reproduction, and display of Liftoff Ads as contemplated herein. If Developer elects to enable header bidding in the Developer Apps, then Developer agrees to abide by such header bidder’s Third Party Policies. Unless expressly agreed in writing, Liftoff makes no guarantee that any level or amount of Liftoff Ads will be placed in the Developer Apps. In addition, Developer hereby grants Liftoff the non-exclusive, worldwide right and license to use, reproduce, distribute and display Developer’s and the Developer Apps’ trademarks, names, logos, and images of the Developer Apps, in connection with the sale of Liftoff Ads hereunder, including (a) listing the Developer Apps and inventory in pitch materials to prospective third-party advertisers (“Advertisers”); (b) reporting the inclusion of Developer Apps and inventory as part of Liftoff’s advertising network, and (c) identifying the Developer as a publishing partner on Liftoff’s website and other marketing materials.
Developer Apps Content Policy: The Developer Apps will not contain, consist of, or promote discrimination, illegal activities, hate speech, defamation, graphic violence, firearms, tobacco, illegal drugs, pornography, sex-trafficking, profanity, obscenity or sexually explicit material (“ Developer Apps Content Policy”). Additionally, Developer will notify Liftoff immediately of any Developer Apps relating to alcohol or real-money gambling. Developer agrees that Liftoff has no responsibility for the Developer Apps, including any content therein, and Liftoff has no obligation or ability to monitor or edit the Developer Apps. Developer will provide as much advance written notice as reasonably practicable, but in no event less than fifteen (15) days’ notice, regarding any material changes to the nature or design of any Developer App, including without limitation, changes to the placement of inventory, any action that will increase or reduce expected inventory within the Developer Apps, the type of content contained within the Developer Apps, or the target audience of the Developer Apps. In the event that Developer desires that certain Advertisers be restricted by category, brand, or otherwise, then Developer shall provide Liftoff with a blacklist and/or whitelist of such Advertisers, including those from DSPs.
Ad Restrictions and Invalid Impressions: Developer may not, and may not authorize or encourage any third party to: (i) engage in or create Invalid Impressions; (ii) edit, modify, filter, or change the order of the information contained in any Liftoff Ad, or remove, obscure or minimize any Liftoff Ad in any way; and/or (iii) redirect an end user away from any web page or app accessed by an end user after selecting or clicking on any part of a Liftoff Ad (“Advertiser Page”), provide a version of the Advertiser Page different from the page an end user would access by going directly to the Advertiser Page, or intersperse any content between the Liftoff Ads and the Advertiser Page. As used herein, “Invalid Impressions” means any impressions, downloads, installs, views, taps, clicks or other user engagement relating to any Liftoff Ad campaign that may artificially inflate an Advertiser 's costs or Developer 's earnings. By way of example, and without limitation, Invalid Impressions are caused by: (1) repeated manual clicks, (2) using “robots”, “spiders” or other tools for making automated computer generated requests, (3) using offers of cash, prizes, incentives, gift cards, vouchers or anything of value, including cryptocurrency, (4) using a design that encourages or is likely to lead to unintended impressions, downloads, installs, views, taps, clicks or other user actions, (5) manipulating or misrepresenting device IDs, Ad IDs, geolocation or other user or device information; (6) hijacking of an end user’s device; (7) automatic advertisement refreshes; or (8) any other deceptive or fraudulent methods. Developer shall promptly notify Liftoff if it suspects that any third party may be tampering with, abusing or manipulating the Monetize Platform or the Liftoff Ads within the Developer App, or otherwise violating the restrictions of this Section. Liftoff may suspend Developer’s use of the Monetize Platform and/or terminate this Agreement immediately should Developer violate the foregoing provisions of this Section, or if Liftoff observes unusually high levels of impressions, downloads, installs, views, taps or clicks on Developer’s account. Developer shall not be entitled to any revenue associated with Invalid Impressions or campaigns.
Collection of Data: Developer acknowledges and agrees that Liftoff may: (i) use the Liftoff Property to collect, process and use data from the device of an end-user, including, for example, orientation data, volume settings, OS language, device make/model, operating system, mobile carrier, and device identifiers (“App Data ”) and the data regarding advertisement performance, including, for example, impressions, interactions, installs, header information, and end user segments or interests (“Performance Data ”) in connection with the performance of this Agreement, including to display Liftoff Ads to end users and to measure and report the performance of Liftoff Ads; (ii) disclose App Data and Performance Data (a) to third parties (including Advertisers, header bidding platforms, DSPs, advertising exchanges, and attribution partners) as reasonably necessary in connection with the operation of the Monetize Platform and performance of this Agreement, (b) if required by any court order, process, law or governmental agency; or (c) generally, when such data is aggregated, so that the specific information relating to Developer is not identified as such; and (iii) use App Data and Performance Data for Liftoff’s internal business purposes, including to develop and improve the Vungle SDK and Monetize Platform, perform internal analytics regarding Vungle SDK performance, and to monitor for errors. Liftoff will collect and use the App Data and Performance Data in accordance with the Privacy Notice, which is available at http://vungle.com/privacy/ (as updated from time to time).
Compliance with Privacy Laws: In performance of this Agreement, Developer agrees to comply with all applicable laws, governmental regulations, court or government agency orders, and decrees relating in any manner to the collection, use, processing or dissemination of data from or about users, user traffic, or otherwise relating to privacy rights. The Developer will inform Liftoff whether its Developer App is “directed to children” as defined by the US Children’s Online Privacy Protection Act (“COPPA ”) and will select the appropriate dashboard settings within the Liftoff Platform related to such child-directed apps (e.g., turn COPPA flag on). In addition, Developer agrees to conspicuously post a privacy notice that accurately describes the Developer’s and third parties’ collection, use, processing, and disclosure of end user data from the Developer Apps, which include disclosure (i) that third parties, including Liftoff, may collect or receive information and use that information to provide measurement services and targeted ads, and (ii) how and where users can opt-out of collection and use of information for ad targeting. Developer will notify Liftoff within thirty (30) days of any official ruling, decision, opinion, or other determination by any governmental or regulatory entity that its Developer App has been determined to be “directed to children under 13” as defined by COPPA. Liftoff reserves the right to modify, suspend, or terminate this Agreement should Developer violate this Section, and/or to remain compliant with all applicable laws.
Monetize Data Privacy Addendum: As applicable, and to the extent performance of this Agreement entails the collection and/or processing of any data or information from end users in the European Economic Area or the UK, the parties agree that the additional terms and conditions set forth in the Monetize Data Privacy Addendum(“DPA”) set out at and incorporated by reference to this Agreement. To the extent this Agreement conflicts with the DPA, the DPA shall govern and control.
Standard Developer Fee: Subject to the terms and conditions of this Agreement, Liftoff shall pay to Developer a percentage of the Net Revenue (the “Developer Fee”), as determined by Liftoff, which may include calculation on a flat CPM basis. “Net Revenue” means the gross revenue actually collected by Liftoff from Advertisers for Liftoff Ads served and displayed within the Developer Apps, less (i) any refunds to Advertisers; (ii) a deduction of up to 10% to cover expenses related to Advertiser discounts, payment transaction fees, telecommunications, data center and other serving costs, (iii) any amounts payable by Liftoff to providers of targeting, reporting, verification or other data, technology or services used in connection with a given campaign hereunder, and (iv) Invalid Impressions and/or other violations. The Developer Fee shall be based on the impression or app installation counts used by the applicable Advertiser(s). For the avoidance of doubt, all Developer Fees are based on advertisement requests from the Developer Apps that are actually fulfilled with Liftoff Ads. All revenue received from activities that Liftoff deems to be due to fraud, Invalid Impressions, or technical error may be refunded to the Advertiser(s) in Liftoff’s sole discretion.
Payment: Liftoff will pay any Developer Fee due to Developer sixty (60) days’ after the completion of the month in which such Liftoff Ads are served and displayed; provided that, Liftoff may withhold payment until the following month for Developer Fee amounts less than $1,000.00 U.S Dollars. Developer shall be responsible for any bank, transfer or transaction fees (e.g., PayPal). In the event that Developer does not claim its payment within one (1) year from delivery, then Developer forfeits such payment and Liftoff may reclaim such payment.
Taxes: Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. Developer may charge and Liftoff will pay applicable national, state or local sales or use taxes or value added taxes that Developer is legally obligated to charge (“Taxes”), provided that such Taxes are stated on the original invoice that you provide to us and your invoices state such Taxes separately and meet the requirements for a valid tax invoice. Liftoff maintains the right, however, to deduct or withhold any applicable taxes that Liftoff may be legally obligated to deduct or withhold from amounts due from Liftoff, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment to Developer. Developer will provide Liftoff with any forms, documents, or other certifications as may be requested by Liftoff to satisfy any information reporting or tax obligations with respect to this Agreement. Developer is responsible for paying, and will indemnify and hold Liftoff forever harmless for, any taxes, duties, or fees, including interest and penalties, for which Developer is legally responsible, or that result from an inaccurate certification where Developer or the Developer Apps do in fact perform in the applicable tax jurisdiction.
Term: This Agreement is effective until terminated in accordance with this Agreement.
Termination/Suspension: Liftoff may terminate this Agreement at any time by providing thirty (30) days’ notice to Developer. Additionally, Liftoff may terminate this Agreement immediately if Developer breaches any provision of this Agreement. Liftoff may immediately suspend Developer’s access to the Monetize Platform if Liftoff reasonably believes Developer has breached this Agreement.
Developer may terminate this Agreement at any time by providing written notice to Liftoff (email to suffice), ceasing all use of the Monetize Platform and Liftoff Property, and destroying or removing from all hard drives, networks, and other storage media all copies of the Liftoff Property.
Effect of Termination: Upon termination of this Agreement by Developer, the Agreement (including all rights and licenses granted and obligations assumed hereunder) will remain in force and effect until the completion of all Liftoff Ad campaigns associated with the Developer Apps in effect on the date of such termination (“Sell-Off Period”). Liftoff’s payment obligations will remain in effect during the Sell-Off Period. Upon any termination of this Agreement, each party will promptly return or destroy all copies of any Confidential Information in its possession or control.
Survival: All sections of this IO which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
Each party (the “Receiving Party ”) understands that the other party (the “Disclosing Party ”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Confidential Information ” of the Disclosing Party). The Receiving Party agrees: (i) not to divulge to any third person any such Confidential Information, (ii) to give access to such Confidential information solely to those employees, consultants or agents with a need to have access thereto for purposes of this IO, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information. The foregoing will not apply with respect to any information that (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known prior to receipt from the Disclosing Party, or (c) was rightfully disclosed without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this IO will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Notwithstanding the foregoing, Liftoff may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services’ performance and as set forth herein.
Use and Disclosure Restrictions: The Receiving Party shall not use the Confidential Information except as necessary to exercise its rights or perform its obligations under this Agreement, and shall not disclose the Confidential Information to any third party, except to those of its employees, subcontractors, and advisors that need to know such Confidential Information for the purposes of this Agreement, provided that each such employee, subcontractor, and advisor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of the Confidential Information as those set forth herein. The Receiving Party will use at least the efforts such party ordinarily uses with respect to its own confidential information of similar nature and importance to maintain the confidentiality of all Confidential Information in its possession or control, but in no event less than reasonable efforts. The foregoing obligations will not restrict the Receiving Party from disclosing any Confidential Information required by applicable law; provided that, the Receiving Party must use reasonable efforts to give the Disclosing Party advance notice thereof (i.e., so as to afford Disclosing Party an opportunity to intervene and seek an order or other relief for protecting its Confidential Information from any unauthorized use or disclosure) and the Confidential Information is only disclosed to the extent required by law. The Receiving Party shall return all of the Disclosing Party’s Confidential Information to the Disclosing Party or destroy the same, no later than fifteen (15) days after Disclosing Party’s request, or when Receiving Party no longer needs Confidential Information for its authorized purposes hereunder.
Developer represents and warrants to Liftoff that: (a) it shall comply with all applicable laws, rules, and regulations with respect to the operation of its business and its use of the Vungle SDK and Monetize Platform; (b) it has all necessary rights, title, and interest in and to the Developer Apps, and it has obtained all necessary rights and permissions to grant the rights to Liftoff in this Agreement, including to allow Liftoff to sell and insert the Liftoff Ads as contemplated herein; (c) the Developer Apps will comply with the Developer Apps Content Policy, and will not infringe upon, violate, or misappropriate any third party right, including any intellectual property or privacy rights; (d) any App Data Developer may provide to Liftoff, and the ability for Liftoff to collect App Data and Performance Data, is permitted under Developer’s privacy notice and provided in compliance with all applicable laws; (e) it has made, and shall maintain, any and all disclosures, and obtained any and all consents or permissions required by applicable laws with respect to Developer’s privacy practices, including without limitation: (i) any end user data Developer collects, uses, processes and/or discloses, (ii) the use and disclosure of App Data and Performance Data to Liftoff via the Vungle SDK and Monetize Platform, and (iii) notice and parental consent required by applicable privacy laws, including COPPA; (f) unless otherwise designated by Developer in the Monetize Platform dashboard, the Developer App is not “directed at children” as defined under COPPA; and (g) it will comply with all applicable Third Party Policies.
THE VUNGLE SDK, THIRD PARTY SOFTWARE AND MONETIZE PLATFORM ARE PROVIDED “AS IS.” LIFTOFF DOES NOT MAKE ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. LIFTOFF AND ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE MONETIZE PLATFORM, THIRD PARTY SOFTWARE, OR VUNGLE SDK WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE MONETIZE PLATFORM, THIRD PARTY SOFTWARE OR VUNGLE SDK ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. LIFTOFF DOES NOT WARRANT THE RESULTS OF USE OF THE MONETIZE PLATFORM OR VUNGLE SDK. DEVELOPER ACKNOWLEDGES AND AGREES THAT LIFTOFF MAY MODIFY OR SUSPEND THE MONETIZE PLATFORM AT ANY TIME IN ITS SOLE DISCRETION AND WITHOUT NOTICE.
Developer agrees to indemnify, defend, and hold harmless Liftoff and its affiliates, and their directors, officers, employees, and agents from and against any liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of any claim, demand, action, or proceeding initiated by a third party arising from or in connection with any breach of Developer’s obligations, representations or warranties set forth in this Agreement.
Liftoff agrees to indemnify, reimburse and hold harmless, Developer, its officers, directors, employees, and agents from and against any and all third party claims, liabilities, demands, causes of action, damages, losses and expenses, including, without limitation, reasonable attorneys 'fees and costs of suit, arising out of or in connection with Liftoff’s infringement or misappropriation of a third party U.S. copyright, trademark or trade secret by the use of the Liftoff Property by Developer as permitted hereunder. Liftoff shall have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by (v) compliance with designs, data, instructions, or specifications provided by Developer; (w) modification of the Liftoff Property by any party other than Liftoff without Liftoff’s express consent; (x) failure to integrate any SDK Update and utilize the most up to date version of the Vungle SDK, (y) Third Party Software, or (z) the combination, operation, or use of the Liftoff Property with other applications, portions of applications, product(s), data or services where the Liftoff Property would not by itself be infringing. THE INDEMNIFICATION RIGHTS CONTAINED IN THIS SECTION ARE DEVELOPER’S SOLE REMEDY FOR THIRD PARTY INFRINGEMENT CLAIMS RELATING TO THE VUNGLE SDK AND THE MONETIZE PLATFORM.
EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS HEREIN AND BREACHES OF THE VUNGLE SDK LICENSE, NEITHER PARTY SHALL BE LIABLE TO OTHER PARTY FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, DATA, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS HEREIN AND BREACHES OF THE VUNGLE SDK LICENSE, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE LESSER OF (I) TEN THOUSAND DOLLARS, OR (II) THE FEES PAID TO LIFTOFF HEREUNDER IN THE TWELVE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED.NOTHING IN THIS AGREEMENT SHALL LIMIT EITHER PARTY 'S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, FRAUD OR FRAUDULENT MISREPRESENTATION OR ANYTHING ELSE THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
Vungle Inc. ∙ 555 Bryant Street, Palo Alto CA 94301
support@liftoff.io