Flurry welcomes you ("Developer"). By checking the Terms and Conditions box, or registering for Flurry's AppCircle Service (as defined below), Developer agrees that it has read, understands, and accepts the terms and conditions described below (the "Terms of Service") and Developer agrees to be bound by these Terms of Service and all terms, policies and guidelines incorporated in the Terms of Service by reference (this "Agreement"). If Developer does not agree to this Agreement, Developer should not use the AppCircle Service in any way. The AppCircle Service is offered to Developer conditioned on Developer's acceptance without modification of this Agreement. Flurry's Analytics Terms of Service, located here, are incorporated herein by reference.
Flurry reserves the right to change or modify any of the terms and conditions contained in this Agreement at any time, in its sole discretion, by posting changes at http://www.flurry.com or such other URL that Flurry may provide from time to time). Developer's continued use of any part of the AppCircle Service following the posting of such changes or modifications will constitute Developer's acceptance of such changes or modifications.
The "AppCircle Service" or "Service" means, the services and Software that facilitate the purchase and placement of Recommendations within Developer's mobile applications. "Recommendations" means the suggestion of applications to the end-user of Developer's mobile application that appear within such application. In order to use the AppCircle Service, Developer must integrate Flurry's AppCircle software development kit ("SDK") into Developer's mobile applications. The AppCircle SDK includes analytics site code, including, but not limited to, the code used in Flurry's Analytics Service, and any fixes, updates and upgrades provided to Developer (the "Agent"). The Agent, Flurry's processing code for the Analytics Service and code for the AppCircle Service are defined collectively herein as "Software". Developer agrees that Flurry may require Developer to use the then-current version of any and all Software. Any Developer that makes its applications available for Recommendations hereby grants Flurry the right to access, index and cache requests made from Developer's mobile applications to the AppCircle Service, and display Recommendations within the Developer's applications.
Developer represents and warrants to Flurry that (i) Developer is the owner of each mobile application Developer designates in connection with the use of the Services or that Developer is legally authorized to act on behalf of the owner of such application for the purposes of this Agreement, and (ii) Developer has all necessary right, power and authority to enter into this Agreement and to perform the acts required of Developer hereunder.
"Content" means all materials accessible through the AppCircle Services, including but not limited to the Recommendations. Developer acknowledges and agrees that if Developer uses any of the AppCircle Services to make Content available, Flurry is hereby granted a non-exclusive, worldwide, royalty-free, transferable right to fully exploit such Content (including all related intellectual property rights) and to allow others to do so in connection with the AppCircle Service. To the extent allowed by law, the foregoing includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as moral rights. To the extent Developer retains any such moral rights under applicable law, Developer hereby ratifies and consents to any action that may be taken with respect to such moral rights by Flurry and agrees not to assert any moral rights with respect thereto. Recommendations may include applications created by AppCircle Developers and by outside Developers through Flurry's use of preferred affiliate networks. Developer shall ensure that its Recommendations comply with all applicable laws and policies and do not contain any content that is infringing, libelous, defamatory, obscene, pornographic, abusive, and offensive or otherwise violate any right of any third party. Developer shall approve the format of all Recommendations it orders. Flurry reserves the right to remove any Content from the AppCircle Service at any time, for any reason, or for no reason at all.
The AppCircle Service requires the payment of fees. Such fees are as described in this Agreement and as more specifically currently set forth at http://www.flurry.com/about-us/legal/appCircle_paymentTerms.html. Flurry may change its fees and payment policies. The changes will be posted at http://www.flurry.com (or such other URL that Flurry may provide from time to time).
A) Recommendation Orders. Unless otherwise agreed by Flurry in writing (to include email), as a condition of placing Recommendation orders, a Developer must make its mobile applications available for Recommendations from other developers. In addition, if a Developer orders Recommendations, Developer shall pay all applicable fees for each instance in which the end-user downloads the application set forth in the Recommendations (the "Install"). In general, fees shall be based on a cost-per-Install and shall be determined via a bidding system subject to a minimum bid. Additional fees may be charged for mutually agreed upon enhancements to the Recommendations. Other fees may apply upon mutual agreement by Flurry and Developer. Developer shall fund its Recommendation account prior to ordering Recommendations for a minimum of $250. Developer may do this via check or credit card. Such funds shall be drawn down as fees become due to Flurry. If Developer does not fund its Recommendation account and fees become due to Flurry, Flurry shall issue an invoice to Developer that shall be due immediately upon receipt. Notwithstanding the foregoing, Flurry reserves the right to not place the Recommendations ordered by Developer if Developer's account is not funded. If the account is terminated, except for Developer's breach, such termination will be effective immediately, and Developer shall receive a refund for any amounts Developer has pre-paid for Services that have not been rendered. In addition, Developer may request a partial refund of any unused amount in its Recommendations account in writing. Such requests shall be limited to once per calendar quarter.
B) Recommendation Placements. If Developer places Recommendations within its mobile applications, Developer shall receive a percentage of the Net Revenue for Recommendations associated with end-users' downloads of applications within such Recommendations. "Net Revenue" shall mean revenues actually received by Flurry from the sale, use or other disposition of Recommendations displayed within Developer's mobile application less applicable taxes, agency commissions, carrier and/or partner fees, affiliate network fees, and less allowances actually made or taken for bad debt, returns, cash discounts or promotional allowances.
Payments to Developer shall be sent by Flurry within forty-five (45) days from the end of the calendar quarter in which such amounts accrue.
Payments to Developer shall be sent by Flurry only if Developer's earned balance is greater than or equal to $100 USD (One Hundred Dollars, US). In addition, any payments that may become due to Developer are specifically conditioned upon Flurry's receipt of full payment from the Developer ordering the Recommendations. In the event that Flurry is not paid in full by the applicable Developer that ordered the Recommendations, Flurry shall only be responsible for paying the Developer that placed the Recommendations from the portion of the amounts Flurry actually received. If Developer disputes any payment made in connection with the Services, Developer must notify Flurry in writing within thirty (30) days of any such payment. In lieu of a cash payment, Developer can opt to receive dollar for dollar credit in a Recommendation account up to a maximum of $50,000 Such credit may be used only to place Recommendations within the mobile applications of other Developers that are AppCircle Service users. If a Developer's Recommendation account is inactive for a period of 6 months, Flurry may, in its sole and absolute discretion close the account and pay any remaining balance to Developer.
Developer agrees that it is solely liable for all costs, fees, and other expenses resulting from Developer's use of the AppCircle Service. This specifically includes, but is not limited to, incidental costs incurred by Developer in connection with Developer's use of the AppCircle Service, including, but not limited to, costs owed to Developer's communication service providers.
To register for the AppCircle Service, Developer must complete the registration process at http://www.flurry.com (or such other URL that Flurry may provide from time to time) by providing Flurry with current, complete and accurate information. Upon registration for the AppCircle Service, Developer will be required to provide Flurry with Developer's email password and user name. Developer understands that Developer is solely responsible for maintaining the confidentiality of Developer's password and that Developer shall be solely and fully responsible for all activities that occur under Developer's username and password. Flurry shall not be responsible for any loss, claim or other liability that may arise from the unauthorized use of any password. Developer agrees to immediately notify Flurry of any unauthorized use of Developer's password or username or any other breach of security. If a password is lost or stolen, it is the Developer's responsibility to change the password, and immediately notify Flurry, so that Developer's account remains both secure and functional.
Developer is hereby granted a nonexclusive, limited, non-transferable, revocable and non-sublicensable license to (i) use the Software, (ii) install and use the AppCircle SDK and Agent and (iii) copy the Agent and each of (i), (ii) and (iii) solely as necessary to use the AppCircle Service in accordance with this Agreement for applications that Developer owns and controls. Developer's use of the Software and accompanying documentation ("Documentation") is subject to this Agreement and does not include: (a) any resale, lease, rental, assignment or other transfer of rights of the Software or Documentation; (b) the distribution, public performance or public display of the Software or Documentation, (c) modification, revision, creation of derivative works from or otherwise making any derivative uses of the Software or Documentation or any information or content therein; (d) decompilation, reverse engineering or otherwise attempting to derive the source code for the Software (except to the extent applicable laws specifically prohibit restriction of such activities); or (e) any use of the Software or Documentation other than for its intended purpose. Flurry hereby reserves all rights not expressly granted herein.
Any use of the Software or Documentation other than as specifically authorized herein, without the prior written permission of Flurry, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark and other intellectual property laws.
As a condition of Developer's access to the AppCircle Service, Developer agrees that Flurry has the right, for any purpose, to retain, use, and publish in an aggregate manner, subject to the terms of its Privacy Policy located at http://www.flurry.com/about-us/legal/privacy.html (or such other URL that Flurry may provide from time to time), information collected in Developer's use of the AppCircle Service, including without limitation, the characteristics and activities of end users of Developer's applications and of Recommendations ("User Data"). Flurry will not disclose to any third parties any User Data collected by the AppCircle Service from Developer's applications or Recommendations in a manner that contains or reveals any personally identifiable information or is specifically attributable to Developer, Developer's applications or Developer's customers. Developer will not (and will not allow any third party to) use the AppCircle Service to track or collect personally identifiable information of end users, nor will Developer (or will you allow any third party to) associate any data gathered from Developer's application(s) or Recommendations with any personally identifying information from any source as part of Developer's use (or such third parties' use) of the AppCircle Service. Developer agrees that it has and will abide by an appropriate privacy policy and will comply with all applicable laws relating to the collection of information from end users of Developer's applications and Recommendations. Developer must post a privacy policy and that policy must provide notice of Developer's use of a tracking pixel, agent or any other visitor identification technology that collects anonymous data about end users of Developer's applications and Recommendations.
"Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within ten business days, indicated in writing as "confidential". Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes publicly known, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed or collected by the receiving party without the use of Confidential Information. Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such.
Developer agrees to indemnify, defend and hold harmless Flurry, its employees, officers and directors, or users from and against any and all claims, liabilities, penalties, settlements, judgments, fees (including reasonable attorneys' fees) arising from (i) any Content that Developer or anyone using Developer's account may submit or access in the course of using the AppCircle Service; (ii) Developer's use of, or inability to use, the AppCircle Service; (iii) Developer's violation of the terms of this Agreement; and (iv) any violation or failure by Developer to comply with all laws and regulations in connection with Developer's use of the AppCircle Service, whether or not described herein.
If Developer uses the AppCircle Service on behalf of any third party, Developer represents and warrants that Developer is authorized to act on behalf of, and bind to this Agreement, that third party. Developer shall ensure that each third party is bound by and abides by the terms of this Agreement. Developer agrees to indemnify, hold harmless and defend Flurry and its parents, subsidiaries, affiliates, officers and employees, at Developer's expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Flurry, arising out of or relating to (a) any representations and warranties made by Developer concerning any aspect of the AppCircle Service; (b) any claims made by or on behalf of any third party pertaining directly or indirectly to Developer's use of the AppCircle Service; (c) violations of Developer's obligations of privacy to any third party; and (d) any claims with respect to acts or omissions of third parties in connection with the AppCircle Service.
Developer specifically agrees that Flurry shall not be responsible for unauthorized access to or alteration of the User Data or data from Developer's applications or Recommendations. Developer acknowledges that the availability and operation of and the Content made available within the AppCircle Service is subject to many factors outside of Developer's control. Developer is solely responsible for determining whether Content is appropriate or acceptable to Developer. Flurry will store Recommendations within Developer's applications. Such storage may result in higher data usage charges for Developer's end users. Developer assumes all risk and liability to the end users associated with the storage of these Recommendations and agrees to notify the end users as required by law or by the carriers.
FLURRY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY REGARDING THE SERVICE TO THE FULL EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE APPCIRCLE SERVICE IS PROVIDED "AS-IS" AND WITHOUT WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF PERFORMANCE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FURTHER, FLURRY DOES NOT MAKE, AND HAS NOT MADE, ANY REPRESENTATION OR WARRANTY THAT THE APPCIRCLE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR VIRUS-FREE OR THAT THE OPERATION OF THE APPCIRCLE SERVICE WILL BE UNINTERRUPTED. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO DEVELOPER.
IN NO EVENT SHALL FLURRY, ITS SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO DEVELOPER OR ANY OTHER PERSON OR ENTITY, UNDER ANY THEORY, INCLUDING WITHOUT LIMITATION NEGLIGENCE, FOR DAMAGES OF ANY KIND ARISING FROM OR RELATED TO THE APPCIRCLE SERVICE, THE SOFTWARE OR ANY INFORMATION, CONTENT OR MATERIALS IN OR ACCESSIBLE THROUGH THE SOFTWARE OR APPCIRCLE SERVICE, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, ACTUAL, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS, THAT RESULT FROM DEVELOPER'S OF, OR INABILITY TO USE, THE SOFTWARE OR THE APPCIRCLE SERVICE, EVEN IF FLURRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO DEVELOPER.
Flurry reserves the right to discontinue offering the AppCircle Service or to modify the AppCircle Service at any time in its sole discretion. If Developer is dissatisfied with any aspect of the AppCircle Service at any time, Developer's sole and exclusive remedy is to cease using it. Notwithstanding anything contained in this Agreement to the contrary, Flurry may also, in its sole discretion, terminate or suspend Developer's access to the AppCircle Service at any time. Upon any termination of this Agreement, Flurry will cease providing the AppCircle Service, and Developer will delete all Software and certify thereto in writing to Flurry within three (3) business days of such termination.
If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. Flurry's acquiescence in the breach of a provision of this Agreement or failure to act upon such breach does not waive Flurry's right to act with respect to subsequent or similar breaches. Likewise, the delay or failure of Flurry to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
This Agreement and the relationship between Developer and Flurry shall be interpreted in accordance with the laws of the State of California without regard to conflict of laws principles. Developer and Flurry hereby agree to submit, exclusively, to the personal jurisdiction of the state courts with jurisdiction over San Francisco, California and/or the U.S. District Court for the Northern District of California.
This Agreement constitutes the entire agreement between Developer and Flurry and governs Developer's use of the AppCircle Service, superseding any prior agreements between Developer and Flurry with respect to the AppCircle Service.
The terms and conditions contained in this Agreement that by their sense and context are intended to survive the performance hereof by the Parties hereunder, including but not limited to the provisions relating to Indemnity, Disclaimer of Warranties and Limitation of Liability, shall so survive the completion of the performance, cancellation or termination of this Agreement.
version: Flurry.AppCircle.Agreement.v2
last updated: Friday, April 30, 2010
