DATAPOEM TERMS OF SERVICE
DataPoem Labs, Inc. (“DataPoem” or “us”, “our”, “we”) provides unified marketing data, intelligent insights, and attribution and ROI measurement services (the “Services”) which aim to enable businesses to plan, optimize and execute and monitor their advertising activities.
These Terms of Service (these “Terms”) together with the executed mater services agreements form above (the “Service Entitlement”), govern your access and use of the Services.
“You” or “Customer” means the entity that accesses and uses the Services. Please read these Terms carefully. These Terms govern your use of the Services.
BY EXECUTING OR CONFIRMING A SERVICE ENTITLEMENT TO WHICH THESE TERMS HAVE BEEN INCORPORATED, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THESE TERMS AND AGREE TO BE BOUND BY THESE TERMS.
IF YOU ARE AN INDIVIDUAL ENTERING INTO THESE TERMS ON BEHALF OF A LEGAL ENTITY, YOU HEREBY REPRESENT AND WARRANT TO US THAT YOU ARE AUTHORIZED TO ENTER INTO THESE TERMS ON BEHALF OF SUCH ENTITY AND BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE, THE TERMS “YOU” AND “YOUR” AND “COMPANY” WILL REFER TO SUCH ENTITY.
IF YOU DO NOT ACCEPT ALL THE TERMS HEREIN OR ARE NOT AN AUTHORIZED AGENT FOR THE LEGAL ENTITY THAT WISHES TO ENTER INTO THESE TERMS, YOU MAY NOT ASSENT TO THERE TERMS.
ALSO, YOU MAY NOT ENTER INTO THESE TERMS OR OTHERWISE USE THE SERVICES IF YOU ARE A COMPETITOR OF DATAPOEM.
1. Definitions. As used in these Terms, the following terms shall have the meanings set forth below:
“Attribution Service” means that part of the Services aimed at enabling you to track and measure the impact of your marketing efforts.
“Customer Application” means one of more mobile software applications of the Customer that (i) are written to run on the iOS or Android operating system and (ii) integrate the SDK and Sample Code within them in order to use the Attribution Service via the SDK.
“Data Processing Addendum” or “Addendum” means DataPoem’s Data Processing Addendum appended to these Terms and forming an integral part the Terms, and any amendment or update thereof, as may be in effect from time to time.
“Dashboard” means the user interface for the Services, as described in the Documentation.
“EULA” means the Customer’s end-user license agreement for the Customer Application (i) that disclaims all warranties and liabilities on behalf of DataPoem, (ii) that prohibits all decompilation and other reverse engineering of the subject software, (iii) to which DataPoem is a third-party beneficiary and (iv) that meets the Apple Store’s then-current requirements for end-user licenses and Google Play’s then-current requirements for end-user licenses (whichever is applicable).
“Sample Code” means software source code included in the SDK that is plainly marked to indicate that it is authorized for inclusion in Customer Applications.
“SDK” means any DataPoem software development kit that may be distributed at https://DataPoem.zendesk.com/hc/en-us.
“User Data” means IDFAs, Android IDs, Google Advertising IDs or equivalents, as well as other information regarding the behavior and usage patterns of end users of Customer Applications, that Customer may make available to DataPoem, including via the Dashboard or SDK.
2. Provision of the Services. Subject to the terms and conditions and license grant hereof, DataPoem allows you during the Term to access and use the Services, pursuant to the scheme, parameters and metrics specified in the Service Entitlement and subject to the limitations, capabilities and restrictions. Customer shall use the Services only for its own advertising and promotions, and shall not use the Services to provide similar or competing services to any third party. We may modify, adapt, improve, or enhance the Services, or any of its features, user interface, design or any other aspect related to it, without an obligation to provide you notice thereof. The Dashboard is reserved for the use of Customer’s employees and contractors authorized in writing by DataPoem, and Customer may not provide access to the Dashboard to any third party.
3. Registration. Provide Complete Information. In order to use the Services, Customer will be required to register with DataPoem. Customer must provide all information as requested by DataPoem in the registration process, and Customer represents and warrants that all such information shall be true, accurate and complete. Customer shall keep such information up-to-date as may be required from time to time.
User Authentication. Login to the Dashboard is authenticated with a password, which Customer should periodically change. Customer must maintain the confidentiality of its account login details for its general account and for the Dashboard.
Safeguarding Credentials. Customer is solely responsible for the security of its and its users’ login credentials, and will not provide such login credentials to any third party. Customer is responsible for any use that occurs under its or its users’ login credentials. If Customer believes an unauthorized person has gained access to its or its users’ login credentials, Customer will notify DataPoem as soon as possible. Customer will ensure that its users comply with all terms and conditions of these Terms and Customer remains solely responsible and liable for the acts and omissions of its users. If Customer become aware of any violation by any of its users, Customer will immediately terminate such user’s access to the Services.
4. Restrictions and Obligations. Objectionable Conduct. Except as set forth expressly herein, Customer shall not, and shall not permit any third party, to (a) reverse engineer or attempt to find the underlying code of the Services; (b) modify the Services, or insert any code or product, or manipulate the Services or their presentation in any way; (c) use the Services in order to develop, or create, or permit others to develop or create, a product or service similar or competitive to the Services; (d) impose an excess load or burden on the Services, (e) circumvent any security or access control measures of the Services (f) offer, license or distribute the Services to any third party, or use the Services as part of a service bureau operation or to provide services on behalf of or for the benefit of any third party, including by way of using any portion of the SDK to provide, or to assist in or further the provision of, any data processing, outsourcing, time-sharing or service-bureau services, or any other services for the benefit of any third party; (g) use, copy, modify, or distribute the SDK, except as expressly licensed pursuant to Section 7(a), or authorize, permit or enable any third party to use, copy, modify, or distribute the SDK; (h) remove, alter, add to, or obscure any intellectual property or other notice included in the SDK; (i) permit any lien, security interest, or other encumbrance to be attached to the SDK or any portion thereof; or (j) use any portion of the Services for any illegal or unlawful purpose or activity or in violation of any third-party right. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, Customer shall inform DataPoem in writing in each instance prior to engaging in the activities set forth above.
Security Issues. In addition, Customer may not perform or attempt to perform any of the following in connection with the Services: (a) breaching the security of the Services, or identifying, probing or scanning any security vulnerabilities in the Services or the SDK; (b) accessing data not intended for you, or accessing an account you are not authorized to access; (c) interfering with, circumventing, manipulating, overloading, impairing or disrupting the operation, or the functionality of the Services or the SDK; (d) working around any technical limitations in the Services or the SDK; (e) using any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Services or the SDK; (f) collecting or processing information or data about DataPoem’s
customers; (g) sending any virus, worm, Trojan horse or other malicious or harmful code or attachment; or (h) using robots, crawlers and similar applications to scrape, harvest, collect or compile content from or through the Services or the SDK.
Lawful Use Only. You will only use the Services and the SDK in full compliance with all applicable laws, rules and regulations, and you represent and warrant that the Data (as defined below) does not and will not violate any third party rights or any applicable laws.
Your Responsibilities. You are solely and exclusively responsible: (i) for all actions you take in response to your use of the Services and the SDK and (ii) to carry out such actions as you deem appropriate as a result of your usage of the Services and the SDK. We are not responsible or liable for your reliance upon, or use of, the Services or the SDK, your actions in connection with the Services or the SDK, or any consequences resulting therefrom.
Measures Against Activity Imposing Excess Load or Burden on the Services. We reserve the right to block any network traffic originating from any party that imposes or which we reasonably believe may impose, an excess load or burden on the Services, or on our ability to provide the Services, including, but not limited to, third-party advertising services that are sending high-volume impressions or clicks, which could reasonably be considered or suspected as fraudulent (“Block”). In the event we Block any network traffic, we will provide you and we will make commercially reasonable efforts to provide any other third-party involved for which we have been provided contact information, with an e-mail notification. We will make commercially reasonable effort to limit any Block to a twenty-four (24) hours period. Once we institute a Block, we will re-evaluate volumes and all other relevant parameters, and we reserve the right to determine, in our sole discretion, whether to extend the Block for additional periods of time.
Measures Against Fraudulent Use. WE MAY EMPLOY MEASURES TO DETECT AND PREVENT FRAUDULENT OR ABUSIVE USE OF THE SERVICES, AS WELL AS MISUSE OF THE SERVICES AND THE SDK. WE MAY SUSPEND OR TERMINATE YOUR ACCOUNT AND ACCESS TO THE SERVICES AND THE SDK, WITHOUT PRIOR NOTICE, IF WE, IN OUR SOLE DISCRETION, BELIEVE THAT YOU HAVE ENGAGED IN FRAUDULENT OR ABUSIVE USE, OR MISUSE, OF THE SERVICES OR THE SDK.
5. Intellectual Property. Ownership of the Services and SDK. As between the parties, DataPoem shall have all right, title and interest in and to the Services and the SDK, and all software that provides the Services and the SDK, including, without limitation, all copyrights, patents, trademarks, trade names, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Services and the SDK, or any part thereof, including computer code, graphic design, layout and the user interfaces. Except for the limited license granted to you to use the Services and the SDK pursuant to Section 7 of
these Terms, these Terms do not grant to you or assign to you any license, right, title, or interest in or to the Services or the SDK or any associated intellectual property rights.
Don’t Impair our Ownership. You will not perform, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the right, title and interest of DataPoem in and to its intellectual property rights. You will not delete or in any manner alter the copyright, trademark, or other proprietary rights notices or markings that appear on the SDK as delivered or made available to you.
Your Feedback. DataPoem does not request feedback regarding the Services. Notwithstanding the foregoing, if Customer provides DataPoem with any feedback regarding the Services, Customer hereby fully and irrevocably assigns to DataPoem all right, title and interest in and to such feedback, and DataPoem and its affiliates shall be entitled to use all such feedback without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback.
Our Trademarks. Nothing in these Terms grants any right to, and Customer shall not, make any use whatsoever of any DataPoem trademark, servicemark, trade dress or other designator of source or origin.
Indicating You as Customer. Unless you notify us otherwise in writing, we may identify you as a customer and user of the Services on our website, mobile application and in other online or offline marketing materials and press releases, and we may publish case studies and other marketing materials related to your use of the Services. We acknowledge that your company name and logo are protected by intellectual property rights. You hereby grant DataPoem a non-exclusive, royalty-free and fully paid up license, during the Term, to use your name, logo, and website URL, on our website, mobile application and in other online or offline marketing materials relating to the Services. We will use this content strictly in accordance with any usage guidelines you provide to us in advance.
Third Party Components. The Services and the SDK may incorporate third party open source software (“Third Party Software”). To the extent so stipulated by the license that governs the Third Party Software (“Third Party EULA”), each such Third Party Software is licensed directly from its respective licensors and is subject to its respective Third Party EULA. If, and to the extent, a Third Party EULA requires that these Terms effectively impose, grant or incorporate by reference, certain disclaimers, permissions, provisions, prohibitions or restrictions, then such disclaimers, permissions, provisions, prohibitions or restrictions shall be deemed to be imposed, granted, or incorporated by reference into these Terms, as required, and shall supersede any conflicting provision of these Terms, solely with respect to the corresponding Third Party Software which is governed by such Third Party EULA. You acknowledge that DataPoem is not responsible for the availability or for the fulfillment of any Third Party Software warranty or for problems attributable to use of Third Party Software. You are responsible for reviewing, accepting, and complying with any Third Party EULA.
6. Additional Terms for Attribution Service. If the Service Entitlement expressly entitles you to use the Attribution Service, then your use of the Attribution Service is subject to the following license:
License Grant. Subject to Customer’s timely payment of fees for the Attribution Service or the License as per the Service Entitlement, and subject to Customer’s performance all other obligations under these Terms, DataPoem hereby grants to Customer a nonexclusive, worldwide, nontransferable, non-sublicensable license, during the Term, in and to the SDK, solely for Customer’s following business purposes:
To use and copy the SDK in source code form, and to modify the Sample Code, as necessary to create Customer Applications in which the SDK and the Sample Code are integrated; To compile Customer Applications to create object code versions thereof in which the SDK and the Sample Code are integrated; To submit Customer Applications to the Apple Store and Google Play store for approval; and
To distribute, directly and via the Apple Store and Google Play store, object code versions of Customer Applications in which the SDK and the Sample Code are integrated, pursuant to EULAs.
SDK Ownership. The SDK is licensed, not sold, to Customer subject to the terms and conditions hereof. Customer acknowledges and agrees that, as between the parties, DataPoem is the sole and exclusive owner of all right, title and interest in and to the SDK and the Services. No rights or licenses, express or implied, are granted by DataPoem other than as expressly set forth under these Terms, and DataPoem reserves all rights not so expressly granted. Customer shall immediately notify DataPoem in writing of any known unauthorized use of the SDK or the Services. Customer shall fully cooperate with DataPoem’s efforts to protect its intellectual property rights in and to the SDK and the Services.
Software Development Contractors. Customer may use third-party independent contractors (“Contractors”) to develop, create, operate and maintain Customer Applications in accordance herewith, provided that (a) Customer first notifies DataPoem in writing of the name, address, and other available contact information for the Contractor, together with a description of the contemplated applicable services that the Contractor will provide, and promptly notifies DataPoem of any changes in any of the foregoing and (b) such use is pursuant to a written, binding agreement (each, a “Contractor Agreement”) between Contractor and Customer that (i) is at least as protective of DataPoem’s rights in and to the SDK and DataPoem’s Confidential Information as set forth under these Term; (ii) contains Contractor’s acknowledgement and agreement that DataPoem is the exclusive owner of the SDK and DataPoem’s Confidential Information; (iii) designates DataPoem as a third-party beneficiary thereof; and (iv) prohibits any further sub-contracting by Contractor and prohibits Contractor from authorizing or permitting any third party to access or use the SDK or DataPoem’s Confidential Information. Customer shall ensure that each Contractor fully complies with its Contractor Agreement, and Customer shall be fully liable to DataPoem for any breach by Contractor thereof.
7. Fees and Payment. General Payment Terms. The Customer shall make payment to DataPoem pursuant to the payment terms and conditions of the Service Entitlement. All such payable amounts are exclusive of all applicable taxes and government charges, and Customer shall make payment to DataPoem without deduction for and free and clear of any such amounts. Customer must add applicable taxes (including VAT) and other government charges to such amounts. Unless set forth otherwise in the Service Entitlement, amounts are due and payable within thirty (30) days of receipt of the applicable invoice.
Overdue Fees. Failure to settle any overdue fee within twenty (20) calendar days of its original due date will constitute a material breach of these Terms and, without limiting any remedies available to DataPoem, DataPoem may: (i) terminate these Terms; or (ii) suspend performance of or access to the Services, until payment is made current. Late payments shall bear interest at the rate of nine percent (9%) per annum. You will reimburse us for all legal costs and attorney fees we incur in the course of collecting your overdue fees.
Currency and Payment Methods. All fees are quoted in US Dollars and will be paid by you in US Dollars, unless expressly stated otherwise in the Service Entitlement. Fees are payable by wire transfer, check or major credit cards. We may, from time to time, and without specific notice to you, add additional payment methods to the then-current payment methods, or cease to use previously supported payment methods. You represent and warrant that you are lawfully permitted to use the selected payment method in connection with the Services. We may require additional information from you before completing payment transactions. You must keep the billing information you provide to us current, complete, and accurate, and notify us promptly in case of any change in your billing information. By providing any credit card, online account or bank information, you authorize us to automatically charge or debit the selected payment method for the full amount due on a recurring basis (if applicable) until you notify us in writing with an alternative, authorized payment method. You must ensure that you have sufficient funds or credit (as applicable) associated with the selected method of payment. You understand that the amounts charged or debited may vary and that this authorization will remain in effect until the expiration or termination of these Terms. If a payment is returned from a bank account for insufficient or uncollected funds or for erroneous information, we may reinitiate the returned debit to the applicable bank account. Any amounts owed to us that cannot be collected by debit may be charged to any backup credit card on file for you.
Payment Processing. Payment may be processed and handled through relevant third party payment processors. Any payments processed through third party payment processors are therefore subject not only to these Terms, but also the terms and conditions of the applicable third party payment processor pursuant to your agreement with them. You acknowledge that such third party payment processors may charge you commission. We are not responsible for such commission, which is strictly between you and the relevant payment processor. Fees that we are unable to charge through the payment method you provided is deemed an overdue fee.
Payment Obligation Survive. All your payment obligations are non-cancelable and all amounts paid in connection with the Services are non-refundable. You are responsible for paying all fees applicable to your subscription to the Services, whether or not you actively used, accessed or otherwise benefited from the Services.
Your Data Obligations. Customer represents and warrants that it has the right to provide Customer Data into the Services and use the Services to analyze such Customer Data. In addition, Customer represents and warrants that if Customer provides (or authorizes DataPoem to receive) Customer Data from any third party source (such as, for example, data from Facebook or Twitter), then Customer will comply with all the terms and conditions applicable to such third party source including, without limitation, any terms and conditions applicable to the provision and receipt of data from such third party source. It is your sole responsibility to determine whether your Customer Application is subject to the United States Children’s Online Privacy Protection Act (COPPA). If so then: (a) you, the Customer, are the primary ‘operator’ under COPPA liable for compliance with the requirements of COPPA for your Customer Application; (b) you shall, at all times, comply with COPPA in respect of your Customer Application; and (c) where applicable, you must directly inform us in advance of the child-directed nature of your Customer Application, by emailing us to support@DataPoem.com.
Restricted Information. Customer shall not deliver, disclose or make available to DataPoem, including via the Dashboard or the SDK, any Protected Health Information (as defined under the United States Health Insurance Portability and Accountability Act of 1996 (as amended), any information which is considered sensitive as per the enumerated categories at Cal. Civ. Code §1798.81.5(d), or any ‘Special Categories of Data’ within the meaning of the GDPR.
Confidentiality. Confidential Information Defined. As used herein, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either you or us (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however,
Confidential Information Defined. As used herein, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either you or us (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. DataPoem’s Confidential Information includes, without limitation, the Services, the SDK, these Terms and any information related to any of the foregoing.
Information will not be deemed Confidential Information if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of these Terms by the Receiving Party; or (d) is developed independently by the Receiving Party without use of any Confidential Information of the Disclosing Party.
Confidentiality Obligations. Neither we nor you will disclose, or permit to be disclosed, the other party’s Confidential Information directly or indirectly, to any third party without the other party’s prior written consent. Both you and we undertake to use commercially reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of these Terms, either party may disclose the other party’s Confidential Information, in whole or in part: (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) or service providers, who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with these Terms; and (ii) as required by applicable law or by a binding order of a court of competent jurisdiction (in which case each party, to the extent permissible, will provide the other with prior written notification thereof, will provide such party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law).
Both you and we agree to exercise due care in protecting the Confidential Information of the other party from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Both you and the Customer will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth herein.
Our Use is Restricted. Customer shall not use DataPoem’s Confidential Information except as expressly permitted herein. DataPoem shall not use the User Data for the business benefit of any third party unless required by law.
Services Levels, Support. The Service Entitlement describes DataPoem’s support and service commitment, if any, which DataPoem shall make reasonable commercial efforts to satisfy. Notwithstanding such commitment, DataPoem does not guarantee that the Services will operate in an uninterrupted or error-free manner, or that it will always be available, free from errors, omissions or malfunctions, including, without limitation, during any down time (a) caused by outages to any public Internet backbones, networks or servers, (b) caused by any failures of Customer’s software, equipment, systems or local access services, or (c) for previously scheduled maintenance.
Premium Consulting. Customer may request to receive from DataPoem, and DataPoem may agree to provide to the Customer (in its sole discretion), consulting services related to the use of the Services at DataPoem’s then-current rates and on DataPoem’s then-current terms and conditions. The provision of such consulting services shall be subject to a separate services agreement to be negotiated and executed between the parties.
Representations and Warranties; Disclaimers.
Customer Representations. Customer represents and warrants that it has sufficient authority to accept these Terms and that it has not entered into any other agreement, obligation or restriction which would prohibit it from receiving the Services or the access of Customer’s data or other advertising Services by DataPoem. Customer will promptly inform DataPoem if it has reason to believe that the former representation is, or may no longer be, true.
DISCLAIMER OF WARRANTY. CUSTOMER ACCEPTS THE SERVICES AND ANY REPORTS OR ANALYTICS “AS IS”. DATAPOEM MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE SERVICES, REPORTS OR ANALYTICS AND DISCLAIMS ALL EXPRESS OR IMPLIED AND STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUALITY, ACCURACY, TITLE, SECURITY, COMPATIBILITY OR PERFORMANCE. NO OTHER DOCUMENT OR ORAL STATEMENTS MADE BY DATAPOEM OR ITS REPRESENTATIVES SHALL BE DEEMED TO PROVIDE ANY WARRANTY OR REPRESENTATION UNLESS EXPRESSLY SET FORTH HEREIN. ANY ACTIONS TAKEN BY THE COMPANY BASED ON THE ANALYTICS ARE AT COMPANY’S SOLE RISK.
LIMITATION OF LIABILITY. IN NO EVENT OTHER THAN DATAPOEM’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 10 ABOVE, SHALL DATAPOEM OR ITS AFFILIATES OR ANY OF THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, SUCCESSORS OR ASSIGNS, HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE SERVICES OR THE ARRANGEMENTS CONTEMPLATED HEREIN, INCLUDING IN RESPECT OF LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR LOST DATA, WHETHER LIABILITY ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY.
IN NO EVENT SHALL THE LIABILITY OF DATAPOEM OR ITS AFFILIATES OR ANY OF THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, SUCCESSORS OR ASSIGNS) FOR THE PROVISION OF THE SERVICES OR UNDER ANY PROVISION OF THESE TERMS EXCEED THE AMOUNT OF PAYMENT RECEIVED BY DATAPOEM FROM COMPANY IN THE TWELVE (12) MONTHS PRECEDING THE APPLICABLE CLAIM, WHETHER LIABILITY ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY.
THE ABOVE EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL NOT APPLY TO BODILY HARM CAUSED BY DATAPOEM’S NEGLIGENCE OR TO DATAPOEM’S WILLFUL OR INTENTIONAL MISCONDUCT.
Customer understands that DataPoem is not a data storage service. Customer must make backups of any data provided to DataPoem, and DataPoem shall have no liability for any lost or corrupted data.
Customer Indemnity. Scope of Indemnity. You agree to indemnify and hold harmless DataPoem and its affiliates and their respective directors, shareholders, officers, employees, contractors, successors and assigns upon our request and at your own expense, from, and against, any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, arising from any complaint, claim, plea, or demand brought by a third party in connection with, arising from or otherwise related to (a) any Customer Application, or (b) your breach of these Terms.
Indemnity Procedure. If DataPoem seeks indemnification from you, DataPoem will provide you with (i) prompt written notice of any indemnifiable claim; (ii) reasonable assistance and cooperation in the defense of such indemnifiable claim and any related settlement negotiations, at your expense; and (iii) exclusive control over the defense or settlement of such indemnifiable claim, provided, however, that we may settle or reach compromise on any such claim without your consent, if and to the extent such settlement or compromise does not impose any liability (monetary, criminal or otherwise) on you, and further provided that you do no settle the indemnifiable claim in any manner prejudicial to us. We will have the right to participate, our own expense, in the defense (and related settlement negotiations) of any indemnifiable claim with counsel of our own selection.
Term and Termination. The term of these Terms shall commence as of your acceptance hereof and shall continue for the initial period set forth on the Service Entitlement (the “Initial Term”). Upon the end of that Initial Term, these Terms shall automatically renew for successive periods of equal length (collective, the “Term”), unless a party notifies the other party in writing of its desire no to renew these Terms at least 30 days prior to the end of the then-current period. If the Service Entitlement provides for an initial “opt-out period”, Customer may terminate these Terms during the opt-out period. Other then as set forth above, Customer may not terminate these Terms during the Term, except in case of DataPoem’s material breach of these Terms which DataPoem does not cure within 21 days of receiving Customer’s written notice about the breach.
DataPoem may terminate these Terms with written notice if it has reason to believe that Customer is or is likely to be in breach of any provision of these Terms, where Customer does not cure the breach within 21 days of receiving DataPoem’s written notice about the breach, except for a breach that causes imminent or irreparable harm to DataPoem which shall not be subject to the 21 days’ notice period.
Upon any termination or expiration of these Terms, DataPoem will cease providing the Services. In the event of any termination (a) Customer will not be entitled to any refunds of any fees already paid, (b) any outstanding balance for Services rendered through the date of termination will be immediately due and payable in full, and (c) your account on the Services will shut down, you will no longer have access to the Services and all Customer Data stored on the Services shall be permanently deleted by DataPoem. Sections 5, 6, 7.b, 8.b, 8.f, 10, 13, 14, 15, 16 and 18 of these Terms shall survive any termination thereof.
Force Majeure. Each party shall be excused from performance hereunder, except with regard to payment obligations, to the extent that the failure to perform such obligation is due to a Force Majeure Event. A “Force Majeure Event” means any circumstance not within the reasonable control of the party affected, but only if and to the extent that (i) such circumstance, despite the exercise of reasonable diligence, cannot be prevented, avoided or removed by such party, and (ii) such circumstance materially and adversely affects the ability of the party to perform its obligations hereunder. With respect to DataPoem, the cessation of any third party data provider in providing data shall be deemed a Force Majeure Event. If a Force Majeure Event continues for more than thirty (30) days, either party may terminate this these Terms upon written notice.
Miscellaneous. Order of Precedence. In the event of any conflict between these Terms and the Service Entitlement, the Service Entitlement shall govern unless expressly stated otherwise in the Service Entitlement.
Entire Terms. These Terms, the Addendum and the Service Entitlement constitute the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties, whether written or oral, regarding the subject matter hereof.
Waivers. A waiver of any default hereunder or of any of the terms and conditions of these Terms shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed.
Notices. DataPoem may provide Customer with notices required hereunder by contacting Customer at any email address Customer provided, including in its registration information.
Assignment. DataPoem may, upon notice to Customer assign its rights or obligations pursuant to these Terms to a relevant third party as part of a merger or acquisition of DataPoem or its business activities relating to the performance of these Terms. By virtue of such assignment, the assignee assumes all DataPoem’s performance, obligations, rights and duties under these Terms, and DataPoem is irrevocably released from them. Customer agrees not to assign any rights under these Terms; any attempted assignment shall be null and void.
Unenforceable Terms. If any part of these Terms shall be invalid or unenforceable, such part shall be interpreted to give the maximum force possible to such terms as possible under applicable law, and such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of these Terms which shall remain in full force and effect.
Governing Law and Venue. These Terms shall be governed by and construed in accordance with the internal laws of the State of California (without reference to the conflicts of law provisions thereof that would require the application of the law of any other jurisdiction). Any dispute, controversy or claim arising under, out of or relating to these Terms and any subsequent amendment or update to these Terms shall be exclusively referred to and finally determined only in a court of competent jurisdiction located in San Francisco, California (each a “Court”) and both parties agree that neither of them shall object to the jurisdiction of any such Court based upon an argument of lack of jurisdiction, improper venue, forum non conveniens or any other grounds, and hereby submit themselves to the jurisdiction of any Court. EACH PARTY HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY AND CONSENTS TO A BENCH TRIAL WITH THE APPROPRIATE JUDGE ACTING AS THE FINDER OF FACT. Notwithstanding the foregoing, DataPoem may: (a) assert an impleader claim in any court adjudicating a third party claim that is covered by the indemnification provisions of these Terms; and (b) assert a claim for interim injunctive relief in any other court having general or specific jurisdiction over the Customer.
Data Processing Addendum This Data Processing Addendum (“Addendum”) is entered into between DataPoem and the Customer.
WHEREAS, the Services involve processing certain personal data and the parties wish to regulate DataPoem’s processing of such personal data, through this Data Processing Addendum.
THEREFORE, the parties have agreed to this Addendum, consisting of two parts:
Part One applies with respect to the GDPR (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and supplementary GDPR legislations in EU member states).
Part Two applies with respect to the California Consumer Privacy Act of 2018 (CCPA).
Both Part One and Part Two apply only to DataPoem’s processing personal data or personal information of the Customer’s smartphone end-users, for which DataPoem is a Data Processor (as defined in the GDPR), or a service provider (as defined in the CCPA) on behalf of the Customer and under the Customer’s instructions. Part One and Part Two do not apply to DataPoem’s processing personal data or personal information on the DataPoem website at https://www.DataPoem..com or DataPoem’s processing personal data or personal information of representatives of DataPoem’s existing and prospective businesses using our Services.
In the event of any conflicting stipulations between this Addendum and the terms or any other agreement in place between the parties, the provisions of this Addendum shall prevail, except where explicitly agreed otherwise in writing.
This Part One only applies within the scope identified in the preamble of this Addendum.
Customer commissions, authorizes and requests that DataPoem provide Customer the Services, which involves Processing Personal Data (as these capitalized terms are defined and used in the General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679), and in applicable national law implementing the GDPR, or in any subsequent superseding legislation; these shall collectively be referred to as “Data Protection Law”).
DataPoem will Process the Personal Data only on Customer’s behalf and for as long as Customer instructs DataPoem to do so. DataPoem shall not Process the Personal Data for any purpose other than the purpose set forth in this Addendum. Customer is required to inform DataPoem in advance if its services are child directed or have an audience that includes children.
The nature and purposes of the Processing activities are the provision of a technology platform that provides the Customer the ability to administer, measure and monitor their advertising activities. These activities include uploading data to the Services, storage on the Services, retrieval, analytics reporting and derived insights The Personal Data Processed may include, without limitation:
Personal data regarding the behavior and usage patterns of the end-users of mobile applications and other mobile properties operated by the Customer. Subject to the Customer’s discretion, the personal data processed by the platform can include, among others, the end-user’s IP address, Apple’s ID for Advertising (IDFA), Google Android ID and Advertising ID for Android (AIFA), and geo-location information.
Other Personal Data that the Customer may feed into the Services, provided however, that the Customer shall not feed any ‘Special Categories of Data’ within the meaning of the GDPR.
The Data Subjects, as defined in the Data Protection Law, about whom Personal Data is Processed are:
End-users of mobile applications, desktop applications, websites and other properties operated by the Customer
The Parties agree as follows: Customer is and will remain at all times the ‘Data Controller’, and DataPoem is and will remain at all times the ‘Data Processor’ (as these capitalized terms are defined and used in Data Protection Law). As a Data Processor, DataPoem will Process the Personal Data only as set forth in this Addendum. DataPoem and Customer are each responsible for complying with the Data Protection Law applicable to them in their roles as Data Controller and Data Processor.
Customer shall: (a) establish, abide by and communicate a privacy notice to its data subjects, as may be necessary under Data Protection Law, explaining, among others, the processing activities carried out by DataPoem on behalf of the customer; and (b) substantiate the legal basis under Data Protection Law for obtaining and processing the Personal Data as carried out by DataPoem on behalf of the Customer.
DataPoem will Process the Personal Data only on instructions from Customer documented in this Addendum or otherwise provided, including with regard to cross-border transfers of Personal Data. The foregoing applies unless DataPoem is otherwise required to do so by law to which it is subject (and in such a case, DataPoem shall inform Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest). DataPoem shall immediately inform Customer if, in DataPoem’s opinion, an instruction is in violation of Data Protection Law.
DataPoem will make available to Customer all information in its disposal necessary to demonstrate compliance with the obligations under Data Protection Law, shall maintain all records required by Article 30(2) of the GDPR, and shall make them available to the Customer upon request.
DataPoem will follow Customer’s instructions to accommodate Data Subjects’ requests to exercise their rights in relation to their Personal Data, including accessing their data, correcting it, restricting its processing or deleting it, within the Services’ technical capabilities. DataPoem will pass on to Customer requests that it receives from Data Subjects regarding their Personal Data Processed by DataPoem. Any request from Data Subjects arising out of the processing of Personal Data by DataPoem, including but not limited to rectification, erasure, and blocking of Personal Data, portability requests and objection, has to be asserted to Customer. Customer is solely liable for responding to Data Subjects on such requests.
Customer acknowledges and agrees that DataPoem uses the following sub-processors to Process Personal Data:
Customer authorizes DataPoem to engage sub-processors for carrying out specific processing activities of the Services, provided that DataPoem informs the Customer at least 10 business days in advance of any new or substitute sub-processor (including in respect of any material changes in the other sub-processor’s ownership or control), in which case Customer shall have the right to object, on reasoned grounds, to that new or replaced sub-processor. If Customer so objects, DataPoem may not engage that new or substitute sub-processor for the purpose of Processing Personal Data, and DataPoem may either select another sub-processor in which case the above procedure shall repeat, or if it so chooses, terminate the Terms with no liability to Customer for such premature termination.
Without limiting the foregoing, in any event that DataPoem engages another sub-processor, DataPoem will ensure that the that sub-processor is contractually bound by obligations consistent with DataPoem’s obligations under this Addendum, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR.
DataPoem and its sub-processors will only Process the Personal Data in member states of the European Economic Area, in territories or territorial sectors recognized by an adequacy decision of the European Commission, as providing an adequate level of protection for Personal Data pursuant to Article 45 of the GDPR, or using adequate safeguards as required under Data Protection Law governing cross-border data transfers (e.g., Model Clauses).
Customer and DataPoem hereby subscribe and enter into the standard contractual clauses for the transfer of personal data to processors established in third countries (2010/87/EU) as follows:
In Processing Personal Data, DataPoem will implement appropriate technical and organizational measures to protect the Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access.
DataPoem will ensure that its staff authorized to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
DataPoem shall allow for and contribute to audits, including carrying out inspections on DataPoem’s business premises conducted by Customer or another auditor mandated by Customer, at Customer’s cost and expense, during normal business hours and subject to a prior notice to DataPoem of at least 10 days as well as appropriate confidentiality undertakings by Customer covering such inspections in order to establish DataPoem’s compliance with this Addendum and the provisions of the applicable Data Protection Law as regards the Personal Data that DataPoem processes on behalf of Customer.
DataPoem shall without undue delay notify Customer of any security breach it becomes aware of regarding Personal Data of Data Subjects that DataPoem Processes. DataPoem will use commercial efforts to mitigate the breach and prevent its reoccurrence. Customer and DataPoem will cooperate in good-faith on issuing any statements or notices regarding such breaches, to authorities and Data Subjects.
DataPoem will assist Customer with the eventual preparation of data privacy impact assessments and prior consultation as appropriate, provided, however, that if such assistance entails material costs or expenses to DataPoem, the parties shall first come to agreement on Customer reimbursing DataPoem for such costs and expenses.
DataPoem will provide Customer prompt notice of any request it receives from authorities to produce or disclose Personal Data it has Processed on Customer’s behalf, so that Customer may contest or attempt to limit the scope of production or disclosure request.
Upon Customer’s request, DataPoem will delete the Personal Data it has Processed on Customer’s behalf under this Addendum from its own and its sub-processor’s systems, or, at Customer’s choice, return such Personal Data and delete existing copies, and upon Customer’s request, will furnish written confirmation that the Personal Data has been deleted pursuant to this Section.
The duration of Processing that DataPoem performs on the Personal Data is for the period set out in the Service Entitlement.
DataPoem has appointed the person listed below as a contact person for data protection purposes: Mr. Veerender Gandu veerender@DataPoem.com . Any change in this contact person shall be disclosed promptly to Customer.
Description of the technical and organisational security measures implemented by DataPoem
Managing database access privileges and imposing restrictions on those with access privileges. This includes maintaining an updated list of users authorized to access the database, according to the various access privileges.
Having its staffer who are authorized users of the data importer execute an undertaking of confidentiality and obligations.
Employing appropriate security measures, commensurate with the sensitivity of the information, to prevent inadvertent or deliberate system intrusion beyond the scope of a user’s access privileges.
Detecting information integrity breaches and handling such breaches.
Developing measures to give the data exporter greater control over the various data processing settings.
Establishing procedures to have the data deleted from the data importer’s systems at the end of the enagement.
Scope. This Part Two applies to the processing of ‘personal information’ (as defined in Cal. Civ. Code §1798.140(o)) by DataPoem within the scope identified in the preamble of this Addendum.
DataPoem’s Obligations. The Parties acknowledge and agree that DataPoem is a ‘service provider’ as defined in Cal. Civ. Code §1798.140(v). To that end, and unless otherwise requires by law:
DataPoem is prohibited from retaining, using or disclosing Customer’s ‘personal information’ (as defined in Cal. Civ. Code §1798.140(o)) for: (a) any purpose other than the purpose of properly performing, or for any commercial purpose other than as reasonably necessary to provide, the Services or as otherwise permitted under 11 CCR §999.314(c); (b) ‘selling’ (as defined in Cal. Civ. Code §1798.140(t)) the Customer’s personal information; and (c) retaining, using or disclosing the Customer’s personal information outside of the direct business relationship between the Parties. DataPoem certifies that it understands the restriction specified in this subsection and will comply with it.
If DataPoem received a request from a California consumer about his or her is ‘personal information’ (as defined in Cal. Civ. Code §1798.140(o)), DataPoem shall not comply with the request itself, inform the consumer that DataPoem’s basis for denying the request is that the DataPoem is merely a service provider that follows Customer’s instruction, and inform the consumer that they should submit the request directly to the Customer and provide the consumer with the Customer’s contact information.
Customer’s obligations. The Customer shall not feed into the Services any Protected Health Information (as defined under the United States Health Insurance Portability and Accountability Act of 1996 (as amended) or any information which are considered sensitive as per the enumerated categories at Cal. Civ. Code §1798.81.5(d).
Subcontracting to suppliers. Customer authorizes DataPoem to subcontract any of its Services-related activities which involve the processing of the personal information or requiring personal information to be processed by any third party supplier, provided that DataPoem shall ensure that the third party is bound by obligations consistent with this Part Two.
Return or deletion of information. Upon Customer’s written request where no subsequent further processing is required, DataPoem shall, at the instruction of Customer, either delete, destroy or return to Customer, some or all (however instructed) of the of the personal information that it and its third party suppliers process for Customer.
Assistance in responding to consumer requests. DataPoem shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to requests for exercising the consumer rights under the California Consumer Privacy Act of 2018.
Data security. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of DataPoem’s processing of personal information for Customer, as well as the nature of personal information processed for Customer, DataPoem shall implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect the personal information from unauthorized access, destruction, use, modification, or disclosure (including data breaches).