NOTICE: In order for a Mobile App to send and receive data from the GroundTruth servers, a license key is needed. To obtain a license key, please contact GroundTruth at [email protected] Additional terms and conditions may accompany or be required prior to receipt of the license key.
By downloading the GroundTruth SDK, installing or using the SDK or any portion thereof on any Android or iOS mobile devices that can connect to and communicate through the Internet (“Device”), you agree to the terms and conditions of this license agreement (“Terms and Conditions”). These Terms and Conditions are a binding contract between you and xAd, Inc. d/b/a GroundTruth (“GroundTruth”). GroundTruth reserves all rights not expressly granted to you in these Terms and Conditions. YOU REPRESENT, ACKNOWLEDGE AND AGREE THAT YOU ARE AT LEAST 18 YEARS OF AGE OR THAT YOU HAVE YOUR PARENT OR LEGAL GUARDIAN’S PERMISSION TO AGREE TO THESE TERMS. IF YOU ARE REGISTERING ON BEHALF OF A COMPANY, OR OTHER LEGAL ENTITY, THEN YOU REPRESENT, ACKNOWLEDGE AND AGREE THAT YOU ARE AT LEAST 18 YEARS OF AGE AND HAVE ALL AUTHORITY NECESSARY TO BIND THE COMPANY OR OTHER LEGAL ENTITY TO THESE TERMS. IN THAT CASE, “YOU” AND “YOUR” WILL REFER TO THAT ORGANIZATION.
Definitions. As used in this Agreement, the following terms have the following meanings.
1.1.“GroundTruth SDK” means a software developer kit provided by GroundTruth that can be integrated into a Mobile App.
1.2.“ Mobile App(s)” means mobile software applications made available by you for use with Android or iOS mobile devices.
License. Subject to the terms and conditions contained in this Agreement, GroundTruth hereby grants to you a limited, non-transferable, non-sublicensable, non-exclusive license to use for internal business purposes only a single copy of the GroundTruth SDK solely to develop, test, operate, and incorporate into Mobile App(s). All other rights are reserved to GroundTruth. You have no right to license, distribute or otherwise transfer the GroundTruth SDK or any rights therein. Your rights in the GroundTruth SDK are limited to those expressly granted in this Agreement.
Obligations and Restrictions
3.1. Implementation. You are solely responsible for ensuring that all hardware, software, networks, systems, and third-party services used by you or your end users are compatible with the GroundTruth SDK. You acknowledge that unless you have obtained a license key from GroundTruth, any Mobile Apps or programs developed by you will not fully operate with GroundTruth systems and GroundTruth systems will not respond to data or ad requests.
3.2. Open Source Components. Use, reproduction and distribution of particular components of the GroundTruth SDK licensed under an open source software license are governed solely by the terms of the applicable open source software license and not this Agreement.
3.3. Restrictions. You will not: (i) modify, adapt, alter, translate, disassemble, decompile or reverse engineer any part of the GroundTruth SDK; (ii) copy or otherwise reproduce the GroundTruth SDK, in whole or in part, (iii) incorporate the GroundTruth SDK into or with other software or create a derivative work of any part of the GroundTruth SDK except as expressly permitted herein; (iv) remove, modify or otherwise tamper with notices (including proprietary rights notices, such as copyright and trademark notices) or legends on the GroundTruth SDK (electronic or otherwise) or any labeling on any physical media; (v) use the GroundTruth SDK in any manner to provide service bureau, time sharing or other computer services to third parties; or (vi) disclose the results of any performance benchmarks or similar testing of the GroundTruth SDK to any third party without GroundTruth’s prior written consent.
3.4. SDK Changes. You acknowledge and agree that the form and nature of the GroundTruth SDK may change without prior notice and that future versions of the GroundTruth SDK may be incompatible with Mobile Apps developed on previous versions of the GroundTruth SDK. You agree that GroundTruth may stop (permanently or temporarily) providing the GroundTruth SDK (or any features within the GroundTruth SDK) at GroundTruth’s sole discretion at any time and without prior notice.
3.5. Compliance with Law and Industry Standards. You agree to use the GroundTruth SDK in accordance with all applicable laws, regulations, or generally accepted industry practices or self-regulatory guidelines in the relevant jurisdictions.
4.1.Intellectual Property Rights. Title to and ownership of the GroundTruth SDK will remain exclusively in GroundTruth at all times. You will promptly notify GroundTruth of any claim of which you are aware that may be adverse to GroundTruth’s interest in the GroundTruth SDK. The GroundTruth SDK will be used only by you, unless GroundTruth authorizes other parties in advance in writing to use the GroundTruth SDK under your supervision.
4.2. Feedback. If you provide GroundTruth with any verbal and/or written feedback related to your use of the GroundTruth SDK, including, without limitation, a report of any errors which you may discover in the GroundTruth SDK or related documentation, or suggestions for improvements or changes to the GroundTruth SDK or any other GroundTruth product or service, you hereby grant GroundTruth a perpetual, irrevocable, worldwide right to use such feedback to develop and improve the GroundTruth SDK or any other GroundTruth product or service.
4.3. Your Ownership. Subject to GroundTruth’s rights in the GroundTruth SDK, GroundTruth acknowledges that GroundTruth does not obtain any ownership interest in any Mobile Apps that you develop using the GroundTruth SDK and you acknowledge that GroundTruth retains ownership in any distributable components of the GroundTruth SDK that you embed in your Mobile Apps.
4.4. Trademarks and Rights Notices. Nothing in this Agreement gives you a right to use any of GroundTruth’s trade names, trademarks, service marks, logos, domain names or other distinctive brand features. You agree that you will not adopt, use or attempt to register, whether as a corporate name, domain name, product name, trademark, service mark or other indication of origin, any trademark of GroundTruth or any mark that is confusingly similar to or will dilute the distinctive nature of the GroundTruth trademarks. You also agree that you will not include the term “GroundTruth” as part of the name for any application that you develop using the GroundTruth SDK.
Term and Termination. This Agreement is effective until terminated by GroundTruth as described below.
5.1. Termination for Convenience. GroundTruth may immediately terminate this Agreement at any time by notifying you in writing.
5.2. Effect of Termination. Upon any termination of this Agreement for any reason, you will immediately: (i) cease all use of the GroundTruth SDK; and (ii) destroy all copies of the GroundTruth SDK (except for any sample code from the GroundTruth SDK that you have embedded in your authorized Mobile Apps). GroundTruth may disable any license key(s) issued to You. The provisions of Sections 1 (Definitions), 3.c. (Restrictions), 3.e. (Compliance with Law and Industry Standards, 4 (Ownership), 5.2. (Effect of Termination), and 7 (Limitation of Liability) through 11 (Miscellaneous), inclusive, will survive any termination or expiration of this Agreement.
No Warranty. The GroundTruth SDK is provided to you on an "AS IS" and “AS AVAILABLE” basis and without warranty of any kind. GroundTruth DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS, OR IMPLIED, RELATING TO THE GroundTruth SDK, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU AGREE THAT YOUR USE OF THE GroundTruth SDK IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR ANY LOSS OF DATA THAT RESULTS FROM SUCH USE.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL GroundTruth BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) ARISING OUT OF THE USE OF THE GroundTruth SDK REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF GroundTruth HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL GroundTruth’S AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS (USD $100). You acknowledge and agree that the foregoing limitations on liability is an essential element of the basis of the bargain between you and GroundTruth and that GroundTruth would not have entered this Agreement without these limitations. The foregoing limitations will apply notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder.
8.1. Definition. “Confidential Information” means any and all information that is disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, that if disclosed in writing or tangible form is marked as “Confidential” or with some similar designation, or if disclosed orally, is identified as being proprietary and/or confidential at the time of disclosure, or that under the circumstances and nature of the information should reasonably deemed to be confidential. Without limiting the foregoing and regardless of whether identified as being proprietary and/or confidential, Confidential Information of GroundTruth includes all features, functionality, documentation and technical materials relating to the GroundTruth SDK.
8.2. Use and Disclosure Restrictions. Each party shall not use the other party’s Confidential Information except as necessary to exercise its rights or perform its obligations as expressly permitted by this Agreement. Each party shall not disclose the other party’s Confidential Information to any third party, and shall only disclose such Confidential Information to those of its employees, contractors and agents that need to know such Confidential Information for the purposes of this Agreement, provided that each such employee, contractor or agent is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth in this Agreement. Each party will use all reasonable efforts to maintain the confidentiality of all Confidential Information of the other party in its possession or control, but in no event less than reasonable care. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement and cooperates with the disclosing party, at the disclosing party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure or (ii) on an as-needed, confidential basis to its legal or financial advisors. In addition, each party may disclose the terms and conditions of this Agreement as required under applicable securities regulations on a confidential basis to current or prospective investors or acquirers of such party. The foregoing obligations will not apply to any information that the receiving party can demonstrate with competent evidence (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party, (ii) was rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality as shown by the contemporaneous records of the receiving party, (iii) is independently developed by the receiving party without use of, reference, or access to the disclosing party’s Confidential Information as shown by the written records of the receiving party, or (iv) the receiving party rightfully obtains from a third party that had the right to make such disclosure without an obligation of confidentiality.
8.3. Return of Confidential Information. The receiving party will return to the disclosing party or destroy all Confidential Information of the disclosing party in the receiving party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the disclosing party or upon the expiration or termination of the Agreement. Upon request of the disclosing party, the receiving party will certify in writing signed by an officer of the receiving party that it has fully complied with its obligations under this Section 8.c.
8.4. Injunctive Relief. The parties agree that any breach of this Section 8 will cause irreparable harm to the disclosing party for which monetary damages will be inadequate. Accordingly, the disclosing party will be entitled to seek and, if granted, obtain and enforce injunctive or other equitable relief (in addition to any other remedies available to it) to remedy any threatened or actual breach of this Section
9.1. Scope. You shall indemnify, defend and hold GroundTruth and its directors, officers, employees and Affiliates (each an “Indemnified Party”) harmless from and against any claims, actions, damages, losses, liabilities, judgments, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to (i) Your use of the GroundTruth SDK in violation of this Agreement, (ii) a breach of Your representations, warranties, covenants or obligations set forth in this Agreement, or (iii) the failure to have all necessary rights and/or permissions to the User Data.
9.2. Procedure. GroundTruth shall (i) promptly notify You in writing of any claim implicating the foregoing indemnification obligations, (ii) grant You sole control of the defense and/or settlement of the claim, provided that You will not acquiesce to any judgment or enter into any settlement that imposes any obligation or liability on any Indemnified Party without its express prior written consent, and (iii) provide You, at Your expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim. GroundTruth may at its election and expense participate in the defense of any action.
Disclaimer of Warranties and Limitation of Liability
10.1. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. THE GROUNDTRUTH SDK AND ALL OTHER TECHNOLOGIES, DATA, MATERIALS AND DOCUMENTATION PROVIDED BY GROUNDTRUTH IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. GROUNDTRUTH AND ITS SUPPLIERS, LICENSORS AND PARTNERS DO NOT WARRANT THAT THE GROUNDTRUTH SDK OR THE FUNCTIONS CONTAINED THEREIN IN WILL BE CORRECT, UNINTERRUPTED, ERROR-FREE, COMPLETELY SECURE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS WILL BE CORRECTED. THE GROUNDTRUTH SDK MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. GROUNDTRUTH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. GROUNDTRUTH DOES NOT WARRANT THE RESULTS OF USE OF THE GROUNDTRUTH SDK. EACH PARTY ACKNOWLEDGES THAT IT HAS RELIED ON NO REPRESENTATIONS OR WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT.
10.2. Limitation of Liability.
10.2.1. EXCEPT FOR A BREACH OF THE OBLIGATIONS OF CONFIDENTIALITY, ANY LICENSE GRANTS OR RESTRICTIONS, ANY INFRINGEMENT OR MISUSE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR ANY WILFUL OR INTENTIONAL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES RELATING TO LOST DATA AND/OR LOST PROFITS, ARISING FROM OR RELATING TO THE GROUNDTRUTH SDK OR THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2.2. EXCEPT FOR A BREACH OF THE OBLIGATIONS OF CONFIDENTIALITY, ANY LICENSE GRANTS OR RESTRICTIONS, ANY INFRINGEMENT OR MISUSE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, ANY INDEMNITY OBLIGATION OR ANY WILFUL OR INTENTIONAL MISCONDUCT, EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE GROUNDTRUTH SDK AND THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED IN PAYMENT BY GROUNDTRUTH FROM YOU UNDER THIS AGREEMENT IN THE SIX MONTHS PRECEDING THE CIRCUMSTANCES THAT GAVE RISE TO THE CLAIM AT ISSUE. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS AMOUNT. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 10.2.2. IS AN ESSENTIAL ELEMENT OF THE AGREEMENT AND THAT, IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
11.1. Relationship of the Parties. The parties are independent contractors with respect to one other. This Agreement does not create and shall not be construed as creating a partnership, joint venture, or employment relationship between the parties. Neither party shall have, and shall not represent to any third party that it has, any right to obligate or bind the other party in any manner whatsoever. Nothing in this Agreement shall give, or is intended to give, any rights of any kind to any third party.
11.2. Assignment. Neither party may assign or delegate any of its rights or obligations under this Agreement without the express prior written consent of the other party, and any attempt to do so in contravention of this provision shall be null and void, except that GroundTruth may assign its rights and obligations under this Agreement without such consent in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction, to be effective upon notice to You. This Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
11.3. Waiver. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific instance and occurrence so waived. The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term herein. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
11.4. Construction. Section headings are for reference purposes only and should not be used in the interpretation of this Agreement. No provision of this Agreement will be construed against either party as the drafter thereof. Each party has had the opportunity to consult with counsel in the negotiation of this Agreement. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality or enforceability of the remaining provisions of this Agreement, and such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law.
11.5. Notices. All notices and other communications required or permitted to be given under this Agreement shall be given in writing. Notices to GroundTruth shall be sent to GroundTruth, Inc., One World Trade, 60th Floor, New York, NY 10007, Attn: General Counsel, with a copy to [email protected]. Notices to You shall be sent to the address indicated as the Principal Place of Business on the Cover Sheet or the email address indicated as the Contact Email on the Cover Sheet. Notices shall be sent by certified mail, delivered by a nationally recognized courier service, delivered by hand, or sent by email, and are deemed to have been received when they are delivered by courier, hand delivered, or emailed, or five business days after the date of mailing. Either party may change its address by giving notice of the new address to the other party in writing.
11.6. Governing Law; Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without reference to conflicts of laws principles that would require the application of the laws of a different jurisdiction. The parties agree that the federal and state courts in New York County, New York will have exclusive jurisdiction and venue under this Agreement, and each party irrevocably submits to such jurisdiction exclusively and the parties hereby waive all defenses based upon forum non conveniens, improper venue, or personal jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement. If a dispute arising under this Agreement results in litigation, the non-prevailing party shall pay the court costs and reasonable attorneys’ fees of the prevailing party. Notwithstanding the foregoing, either party has the right to apply to any court of competent jurisdiction for provisional relief, including pre-trial attachments, a temporary restraining order, temporary injunction, permanent injunction and/or order of specific performance, as may appear reasonably necessary to preserve the rights of either party.
11.7. Entire Agreement and Language. This Agreement, including any subsequent terms and conditions to which you agree in connection with receipt of the license key, constitutes the entire understanding between the parties concerning the subject matter hereof and supersedes all prior and/or contemporaneous discussions, contracts and representations, whether oral or written and whether or not executed by GroundTruth and You. This Agreement or any part or provision hereof shall not be deemed waived, amended, or modified by either party unless such waiver, amendment or modification is in writing and executed by authorized representatives of both parties. This Agreement shall be executed in English and any other language versions shall be for convenience only.
Updated about 3 years ago