fLURRY APPSPOT PUBLISHER PLATFORM TERMS OF SERVICE
Last updated: May 1, 2013
Acceptance of Terms
Flurry Analytics must be used in conjunction with the Flurry AppSpot Service; therefore, the Flurry Analytics Terms of Service located http://www.flurry.com/tos.html (or such other URL that Flurry may provide from time to time) is incorporated herein by reference.
Flurry AppCircle Service (as defined below) may be used in conjunction with the Flurry AppSpot Service, and to the extent Publisher uses the Flurry AppCircle Service in conjunction with the Flurry AppSpot Service, Publisher shall be obligated to the Flurry AppCircle Service terms and conditions described herein.
At Publisher's option, Flurry AppCircle Service (as defined below) may be used in conjunction with the Flurry AppSpot Service, and to the extent Publisher uses the Flurry AppCircle Service in conjunction with the Flurry AppSpot Service, Publisher shall be obligated to the Flurry AppCircle Service terms and conditions described herein.
At Publisher's option, Flurry RTB Service (as defined below) may be used in conjunction with the Flurry AppSpot Service, and to the extent Publisher uses the Flurry RTB Service (together with the AppSpot Service and AppCircle Service, the "Services" and each a "Service"), Publisher shall be obligated to the Flurry RTB Service terms and conditions described herein.
To register for the Flurry AppSpot Service, Publisher 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 Flurry AppSpot Service, Publisher will be required to provide Flurry with its email password and user name. Publisher understands that it is solely responsible for maintaining the confidentiality of its password and that Publisher shall be solely and fully responsible for all activities that occur under its 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. Publisher agrees to immediately notify Flurry of any unauthorized use of Publisher's password or username or any other breach of security. If a password is lost or stolen, it is Publisher's responsibility to change the password, and immediately notify Flurry, so that Publisher's account remains both secure and functional.
The Services are available only to individuals who are at least 18 years old and to companies that are appropriately licensed and otherwise legally permitted to conduct business. You represent and warrant that (a), if you are an individual, you are at least 18 years old, and (b) if you are a company, you are appropriately licensed and is legally permitted to conduct business.
Flurry AppSpot Service
Description and UseThe "Flurry AppSpot Service" means, the services and Software that allow Publisher to sell its advertising space ("Inventory") to advertisers ("Advertisers") in order to place such advertisements ("Ads") within Publisher's application(s). In order to use the Flurry AppSpot Service, Publisher must integrate the Flurry software development kit (the "SDK") into Publisher's application(s). Flurry Analytics site code (the "Agent"), Flurry's processing code for Flurry's Analytics Service and the SDK are defined collectively herein as "Software". Publisher agrees that Flurry may require Publisher to use the then-current version of any and all Software.
Flurry AppSpot Service Fees and Payment
The basic Flurry AppSpot Service is provided to Publisher free of charge. Flurry may change its fees and payment policies for the Flurry AppSpot Service from time to time. The changes will be posted at http://www.flurry.com (or such other URL that Flurry may provide from time to time). Publisher's use of the enhanced features of the Flurry AppSpot Service requires the payment of additional fees, as described at http://www.flurry.com/appspot_pricing.html (or such other URL that Flurry may provide from time to time).
Advertisers and Advertisements
Publisher is solely responsible for all matters related to the Advertisers, including without limitation, handling all support services, billing and payment, and any other inquiries and disputes of any type or nature. Publisher is solely responsible for all Ads and related urls, content and subject matter, editorial, text, graphic, audiovisual, and any other information Publisher makes available in connection with the Flurry AppSpot Service (collectively, "Ad Content"). All Ad Content shall be subject to the Flurry's Content Guidelines located at http://www.flurry.com/contentGuidelines.html (the "Content Guidelines"). Flurry has no obligation to monitor or edit the Ad Content.
You represent and warrant to Flurry that: (i) you have and will maintain during your use of the Flurry AppSpot Service all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to the Ad Content to permit Flurry to perform the services contemplated under this Agreement (including without limitation any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of the Ad Content); and (ii) the Ad Content will comply with all applicable laws, the Content Guidelines and applicable Flurry policies and will not contain any content that is infringing, libelous, defamatory, obscene, pornographic, abusive, and offensive or otherwise violates any right of any third party.
Flurry AppCircle Service
To the extent Publisher chooses to use the AppCircle ad network, Publisher agrees to the following terms and conditions under this section.
Description and Use
The "AppCircle Service" means the ad network services and Software provided by Flurry to you, which facilitates the purchase and placement of digital ad campaigns promoting a product or service on Flurry's network of publisher partners or on third party network partners with whom Flurry has a contractual relationship. A campaign may include AppCircle Rewards, an optional feature for the integration of a virtual currency system in a Recommendation as a reward for installs or views.
In order to use the AppCircle Service, you must integrate the SDK. By making your application available for Recommendations, you hereby grant Flurry the right to access, index and cache requests made from your mobile applications to the AppCircle Service, and display Recommendations within your applications. "Recommendations" means the various digital ad campaigns you may place promoting your product or service, including without limitation, App Recommendations, Clips Recommendations, Re-Engagement Recommendations and display advertisements.
"AppCircle Content" means all materials accessible through the AppCircle Service, including but not limited to the Recommendations. You hereby grant to Flurry a non-exclusive, worldwide, royalty-free, transferable right to fully exploit the AppCircle 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 you retain any such moral rights under applicable law, you hereby ratify and consent to any action that may be taken with respect to such moral rights by Flurry and agree not to assert any moral rights with respect thereto. Recommendations may include applications created by you and by outside developers through Flurry's use of preferred affiliate networks.
You represent and warrant to Flurry that: (i) you have and will maintain during your use of the AppCircle Service all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to the AppCircle Content to permit Flurry to perform the AppCircle Service contemplated under this Agreement (including without limitation any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of the AppCircle Content); and (ii) the AppCircle Content will comply with the Content Guildelines and all applicable laws, and will not contain any content that is infringing, libelous, defamatory, obscene, pornographic, abusive, and offensive or otherwise violates any right of any third party.
Flurry agrees not to transmit any Recommendations to you that are unlawful, deceptive, defamatory, libelous, harassing, abusive, fraudulent or obscene. You may also request that Flurry block Recommendations from a list of specified third parties, and Flurry agrees to use reasonable efforts to block Recommendations from such third parties for display on your mobile applications used as part of the AppCircle Service.
If you order and purchase Recommendations, you shall ensure that your Recommendations comply with all applicable laws and policies, including Flurry's Content Guidelines 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. You shall approve the format of all Recommendations you order. Flurry reserves the right to remove any AppCircle Content from the AppCircle Service at any time, for any reason, or for no reason.
Flurry AppCircle Fees and Payment
The AppCircle Service is subject to the fees and payments as described below. Flurry may change its fees and payment policies at any time.
- Recommendation Orders and Purchases
If you order and purchase Recommendations through the AppCircle Service, you agree to pay (or have Flurry deduct from your Recommendation Account) any and all applicable fees incurred in connection with your use of the AppCircle Service at the then-current prices in effect. Such prices will be specified on Flurry's website at http://www.flurry.com or such other location as Flurry may specify from time to time. In addition, if you order and purchase Recommendations, you shall pay all applicable fees for each click, install or view, as applicable to your Recommendations. Pricing for Recommendations shall be determined by a bidding process setting the price you are willing to pay per click, install or view. You may select the price you want to bid per click, install or view provided that such price is equal to or greater than the minimum bid established by Flurry. Additional fees may be charged by Flurry for mutually agreed upon enhancements to the Recommendations. Other pricing metrics or fees may apply upon mutual agreement by you and Flurry.
You shall fund your Recommendation Account prior to ordering Recommendations for a minimum of $250 USD. You may do this via check or credit card. Such funds shall be drawn down as fees become due to Flurry. If you do not fund your Recommendation Account and fees become due to Flurry, Flurry shall issue an invoice to you which shall be due immediately upon receipt. Notwithstanding the foregoing, Flurry reserves the right to not place the Recommendations ordered by you if your account is not funded. If your account is terminated, except for your breach, such termination will be effective immediately, and you shall receive a refund for any amounts you have pre-paid for AppCircle Service that have not been rendered. In addition, you may request a partial refund of any unused amount in your Recommendations Account in writing. Such requests shall be limited to once per calendar quarter.
The terms set forth in any Insertion Order ("IO") that conflict with or are in addition to any of the terms and conditions relating to the AppCircle Service as set forth herein shall be void and of no effect, unless expressly agreed to by the parties in writing and signed by an officer of Flurry.
- Recommendation Placements
If you place Recommendations within your mobile applications, you will receive a percentage of Net AppCircle Revenue associated with the following "End-User Actions":
Recommendations End-User Actions App Recommendation Download and launch of the application within the App Recommendation Clips Recommendation Complete a viewing of an entire video advertisement set forth in the Clips Recommendation Re-Engagement Recommendation Launch of the application previously installed by end-user as set forth in the Re-Engagement Recommendation Display Advertisement Click or engagement of the advertisement
"Net AppCircle Revenue" shall mean revenues actually received by Flurry from the sale, use or other disposition of the applicable Recommendation displayed within your mobile application less fees received for use of personas (if applicable), less applicable taxes, agency commissions, carrier and/or partner fees, affiliate network fees, and less allowances for bad debt, returns, cash discounts or promotional allowances actually made or taken.
Flurry shall send payment to you within approximately forty-five (45) days from the date when you request a payment, provided that Flurry will only send you a payment if your earned balance of Net AppCircle Revenue is greater than or equal to $100 USD in the your Publisher Account. In addition, any payments that may become due to you are specifically conditioned upon Flurry's receipt of full payment from your order of the applicable Recommendation. In the event that Flurry is not paid in full by you in accordance with your order of the Recommendations, Flurry shall only be responsible for paying you from the portion of the amounts Flurry actually received from you. If you dispute any payment made in connection with the AppCircle Service, you must notify Flurry in writing within thirty (30) days of any such payment. If your Publisher account is inactive for a period of six (6) months, Flurry may, in its sole and absolute discretion close such account and pay any remaining balance to you.
In lieu of a cash payment, you can opt to receive credit in your Recommendation Account ("Credit Transfer"). Such credit may be used only to place Recommendations within the mobile applications of other publishers that are AppCircle Service users. You will receive a twenty-five (25%) bonus on any Credit Transfer that you make. For example, if you complete a Credit Transfer of $50,000 USD, then you will automatically receive $12,500 USD in your Recommendation Account.
Flurry RTB Service
To the extent Publisher chooses to use Flurry's real-time automated auction service, Publisher agrees to the following terms and conditions under this section.
Description and Use
The "Flurry RTB Service" means the automated real-time auction service that enables Publisher to offer and sell its Inventory to advertisers who are media buyers in the virtual Flurry RTB Marketplace ("Flurry RTB Marketplace") who desire to display and serve their ads ("Buyer Ads") on the applications that Publisher designates ("Publisher Sites"), based on the selling crieteria selected by Publisher through the Flurry user interface for accessing the Flurry RTB Marketplace. Publisher acknowledges and agrees that Publisher is solely responsible for all of Publisher's Inventory and all aspects of the Publisher Sites (including, without limitation, content and subject matter, editorial, text, graphic, audiovisual, and all other content and information).
Flurry RTB Revenue Share and Payment
The Flurry RTB Marketplace allows Publisher to monetize its Inventory on Publisher's Sites by paying Publisher a revenue share of the fees collected by Flurry from media buyers in the Flurry RTB Marketplace. If Publisher sells Inventory via the Flurry RTB Marketplace, Flurry will pay Publisher a percentage of the "Net Marketplace Revenue" generated by its Inventory sold via the Flurry RTB Service ("RTB Revenue Share"). The "Net Marketplace Revenue" means fees actually collected by Flurry from third party advertisers whose Buyer Ads were served to your Inventory, less any charges for taxes, refunds, and advertising agency fees, if any.
Flurry shall send payment to you within approximately forty-five (45) days from the date when you request a payment, provided that Flurry will only send you a payment if your RTB Revenue Share is greater than or equal to $100 USD in the your Publisher Account. If Publisher owes amounts to Flurry for use of any other Service, then at Flurry's election, Flurry may offset the RTB Revenue Share owed to Publisher by such amounts. If Publisher disputes any payment made in connection with the Flurry RTB Service, Publisher must notify Flurry in writing within thirty (30) days of any such payment.
In lieu of a cash payment, you can opt to receive a Credit Transfer. Such credit may be used only to place Recommendations via the AppCircle Service. Publisher will receive a twenty-five (25%) bonus on any Credit Transfer that Publisher makes in Publisher's Recommendation Account.
Flurry hereby grants to Publisher a nonexclusive, limited, non-transferable, revocable and non-sublicensable license to (i) use the Software and (ii) distribute the SDK in each of (i) and (ii) solely as necessary to use the Services in accordance with this Agreement for applications that Publisher owns and controls. Publisher's use of the Services 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 (except as expressly set forth above with respect to the Agent), (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 Services, Software or Documentation other than for its intended purpose. Flurry hereby reserves all rights not expressly granted herein. Any use of the Services, 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.a
Publisher hereby grants to Flurry a nonexclusive, limited, and revocable license under all of its applicable rights to host, serve, route and place the Ads and fill Publisher's Inventory via the Services. Flurry reserves the right to remove any Ads from the Services at any time, for any reason, or for no reason.
Privacy and Information Collection
You agree that you will not use any Service in connection with any application labeled or described as a "Kids" or "Children" application and will not use any Service (i) in connection with any application, advertisement or service directed towards children or (ii) to collect any personal information from children.
"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 (a) which is or becomes publicly known, (b) which is already in the receiving party's possession prior to disclosure by a party or (c) 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.
Representations and Warranties
In addition to any representations and warranties made under the prior sections of this Agreement, you further represent and warrant to Flurry that: (i) you are the owner of each mobile application you designate in connection with the use of the Services or that you are legally authorized to act on behalf of the owner of such mobile application for the purposes of this Agreement; (ii) you have and will maintain during the use of any Service all necessary rights, power, license and authority to enter into this Agreement and to perform the acts required of you hereunder and to permit Flurry to Flurry to perform the Services contemplated under this Agreement; (iii) you have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including, without limitation, any relevant data protection or privacy laws); (iv) you will comply with and have any and all consents, authorizations and clearances from end users to allow Flurry to collect, store, and use User Data; and (v) you will at all times comply with all applicable Flurry policies.
Incidental Costs Associated with Use of the Services
Publisher agrees that it is solely liable for all costs, fees, and other expenses resulting from Publisher's use of the Services. This specifically includes, but is not limited to, incidental costs incurred by Publisher in connection with its use of the Services, including, but not limited to, costs owed to Publisher's communication service providers.
Publisher agrees to indemnify, defend and hold harmless Flurry, its subsidiaries, affiliates, or any of their respective directors, officers, employees and agents from and against any and all claims, liabilities, penalties, settlements, judgments, fees and expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) arising from (i) Publisher's violation of the terms of this Agreement; and (ii) any violation or failure by Publisher to comply with all laws and regulations in connection with Publisher's use of the Services, whether or not described herein.
Disclaimer of Warranties and Limitation of Liability
In connection with your use of the Services, you acknowledge and agree that Flurry is not affiliated with or responsible for any third-party products/services managed with the Service. Flurry neither represents or endorses the quality, accuracy, reliability, integrity or legality of any third party products/services, nor the truth or accuracy of the description of any advertisements, links, content, advice, opinion, offer, proposal, statement, data or other information from any third party products/services ("Disclaimed Content") that is displayed or distributed through the Services. Flurry disclaims any liability or responsibility for errors or omissions in any Disclaimed Content. Flurry reserves the right, but does not have the responsibility, to edit, modify, refuse to post or remove any Disclaimed Content, in whole or in part, that in Flurry, in its sole discretion, deems is objectionable, erroneous, illegal, fraudulent or otherwise in violation of this Agreement.
In connection with your use of the AppCircle Service, you specifically agree that Flurry shall not be responsible for unauthorized access to or alteration of the User Data or data from your mobile applications or Recommendations. You acknowledge that the availability and operation of and the AppCircle Content made available within the AppCircle Service are subject to many factors outside of your control. You are solely responsible for determining whether AppCircle Content is appropriate or acceptable to you. Flurry will store Recommendations within your mobile applications. Such storage may result in higher data usage charges for your end users. You assume 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 SERVICES TO THE FULL EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SERVICES ARE 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 SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR VIRUS-FREE OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO PUBLISHER.
IN NO EVENT WILL FLURRY, ITS SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE "FLURRY PARTIES"), BE LIABLE TO PUBLISHER OR ANY OTHER PERSON OR ENTITY UNDER ANY THEORY FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS ARISING OUT OF THIS AGREEMENT OR THE SERVICES, EVEN IF FLURRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. THE FLURRY PARTIES' AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT OR THE SERVICES WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) USD OR THE AGGREGATE AMOUNT PUBLISHER HAS PAID FLURRY IN THE PAST TWELVE MONTHS FOR THE SERVICES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, THE FLURRY PARTIES' LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
Publisher shall not, directly or indirectly, authorize or encourage any third party to generate fraudulent impressions of or fraudulent clicks, or take similar fraudulent actions or any other actions that interferes with, disrupts or interacts in an unauthorized manner with the Service (or servers and networks which are connected to the Service), in the use of the Services, including but not limited to, through repeated manual clicks, the use of robots, scrapers or other automated query tools and/or computer generated search requests, and/or the fraudulent use of other search engine optimization services and/or software. Flurry may terminate your account at anytime for any reason, including without limitation, such fraudulent activity. Publisher acknowledges and agrees that Flurry may, in its sole discretion, review impressions, click-throughs or other actions with respect to the Service and Publisher shall not be entitled to receive any applicable revenue share for actions that Flurry determines in its sole discretion are fraudulent or improper.
INTERNATIONAL USE; EXPORT CONTROLS
Software available in connection with the AppCircle Service and the transmission of applicable data, if any, is subject to United States export control laws. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of the export control laws of the United States.
Modification of Agreement
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). Publisher's continued use of any part of the Services following the posting of such changes or modifications will constitute Publisher's acceptance of such changes or modifications.
Modifications to and Termination of the Service
Flurry reserves the right to discontinue offering the Services or to modify the Services at any time in its sole discretion. If Publisher is dissatisfied with any aspect of the Services at any time, Publisher'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 Publisher's access to the Services at any time. Upon any termination of this Agreement, Flurry will cease providing the Services, and Publisher will delete all Software and Documentation and certify thereto in writing to Flurry within five (5) business days of such termination. Upon termination of this Agreement for any reason, all fees shall become due and payable immediately.
Waiver and Severability
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.
Choice of Law and Forum
This Agreement and the relationship between Publisher and Flurry shall be interpreted in accordance with the laws of the State of California without regard to conflict of laws principles. Subject to the arbitration provisions below, Publisher and Flurry hereby agrees 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.
Certain portions of this Section are deemed to be a "written agreement to arbitrate" pursuant to the Federal Arbitration Act. Each of Publisher and Flurry agrees that it intend that this Section satisfies the "writing" requirement of the Federal Arbitration Act.
Publisher or Flurry may elect to have any controversy, allegation or claim arising out of or relating to this Agreement, the Services or the User Data, including but not limited to claims for indemnification, contribution, or cross-claims in a pending action involving one or more third parties (collectively, a "Dispute") finally and exclusively resolved by binding arbitration before a sole arbitrator under the rules and regulations of the American Arbitration Association. If an in-person arbitration hearing is required, then it will be conducted in San Francisco, California; but if the applicable arbitration rules or laws require the arbitration to be conducted in the "metropolitan statistical area" (as defined by the U.S. Census Bureau) where Publisher is a resident at the time the Dispute is submitted to arbitration, Flurry shall have the right to elect to proceed to arbitration in such location. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. Publisher and Flurry will pay the administrative and arbitrator's fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Flurry to pay a greater portion or all of such fees and costs in order for this Section to be enforceable, then Flurry will have the right to elect to pay the fees and costs and proceed to arbitration.
TO THE FULLEST EXTENT PERMITTED BY LAW, PUBLISHER AGREES THAT (I) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER; (II) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND (III) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS.
PUBLISHER AGREES TO WAIVE HIS/HER/ITS RIGHT TO A JURY TRIAL AND UNDERSTAND THAT, ABSENT THIS PROVISION, PUBLISHER WOULD HAVE THE RIGHT TO SUE IN COURT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF PUBLISHER OR FLURRY WANTS TO ASSERT A DISPUTE AGAINST THE OTHER, THEN PUBLISHER OR FLURRY MUST COMMENCE IT WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES - OR IT WILL BE FOREVER BARRED.
In the event either Publisher or Flurry elects arbitration, for any Dispute where the total amount of the award sought is less than $10,000 USD, the party requesting relief may further elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, and the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction.
This Agreement constitutes the entire agreement between Publisher and Flurry and governs Publisher's use of the Services, superseding any prior agreements between Publisher and Flurry with respect to the Services.
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.
- Recommendation Orders and Purchases