Placed Affiliate Agreement

 

This Placed Affiliate Agreement (“Agreement”) is an agreement between Placed, Inc. (“Placed,” “us” or “we”) and you (“Affiliate” or “you”), effective as of the date you indicate acceptance (“Effective Date”). This Agreement describes the terms and conditions for participation in the Placed Affiliate Program and use of the Placed SDK (defined below).

PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS IMPORTANT TERMS THAT AFFECT YOUR USE OF THE PLACED SDK (defined below) AND INCLUDES A MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 13. By indicating acceptance of this Agreement via click-through or other electronic means offered by Placed, or otherwise accessing or using the Placed SDK, you agree to be bound by the terms and conditions of this Agreement and all terms incorporated by reference.

1. Definitions

Eligible User” means bona fide, unique users located within the United States, Canada, Australia, or United Kingdom who have installed an Affiliate’s app on a smartphone and have opted into Affiliate and Placed’s collection of precise location information and accepted Affiliate’s privacy policy.

Daily Active Users” means Eligible Users for whom Placed receives sufficient valid measurement location data through the Placed SDK on a calendar day.

Controller to Controller Standard Clauses” means the standard clauses for the transfer of Personal Data to Controllers established in third countries approved by the European Commission from time to time, the approved version of which in force at present is that set out in the European Commission’s Decision 2004/915/EC of 27 December 2004, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32004D0915. Schedule A to this Agreement shall apply as Annex B of the Controller to Controller Standard Clauses.

Placed Affiliate Program” means the program for mobile app publishers approved to integrate the Placed SDK in the Affiliate’s app in order to share data in exchange for a commission paid by Placed as further described in this Agreement and the Placed Affiliate Program Rules.

Placed Parties” means Placed and its affiliates, independent contractors and service providers, and each of their respective members, directors, officers, employees and agents.

Placed SDK” means the software development kit owned by Placed that collects and transfers to Placed mobile device information, including location information from Eligible Users.

2. Affiliate’s Rights and Restrictions

2.1 License to Placed SDK. Subject to the terms of this Agreement, Placed hereby grants Affiliate a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to integrate the Placed SDK on Affiliate’s approved mobile application during the term. The terms of the license will also govern any upgrades provided by Placed, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. As between Placed and Affiliate, Placed owns all right, title, and interest in and to the Placed SDK and any Placed Affiliate Program materials. Except as otherwise specified in this Sections 2.1 of the Agreement, Affiliate does not obtain any rights under this Agreement from Placed to the Placed SDK or Placed Affiliate Program materials, including any related intellectual property rights.

2.2 License to Data. Affiliate hereby grants to Placed a perpetual, irrevocable, non-exclusive license to collect, generate, document, record, store, maintain, make available to third parties and to use, modify, sell, resell or otherwise exploit for its own business purposes, any data collected through the Placed SDK.

2.3 Restrictions. Affiliate may not use the Placed SDK in any manner or for any purpose other than as expressly permitted by this Agreement. Without limitation of the foregoing, the Affiliate rights granted under Section 2.1 do not include or authorize: (a) modifying, disassembling, decompiling, reverse engineering or otherwise making any derivative use of the Placed SDK or using or accessing the Placed SDK to build a competitive product or service; (b) using any data mining, robots or similar data gathering or extraction methods except as provided by the Placed SDK; (c) performing or disclosing any benchmarking or performance testing of the Placed SDK; (d) selling, licensing, renting, leasing, assigning, distributing, displaying, hosting, disclosing, outsourcing or otherwise commercially exploiting the Placed SDK except as authorized in this Agreement; or (e) using the Placed SDK other than for its intended use. During and after the term, Affiliate will not assert, nor authorize, assist or encourage any third party to assert, against any of the Placed Parties, any intellectual property infringement claim regarding the Placed SDK or any Placed product that Affiliate has used. The rights granted under Section 2.1 are conditioned on Affiliate’s continued compliance with this Agreement (including, without limitation, Affiliate’s obligation to obtain Eligible Users’ consent to the data practices described in this Agreement), and will immediately and automatically terminate if Affiliate does not comply with any material term or condition of this Agreement.

2.4 User Accounts and Account Security. You may need to register for an account to access the Placed SDK. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account.

3. Placed Affiliate Program Application Process

To enroll in the Placed Affiliate Program, Affiliate must submit an Affiliate application and be approved by Placed. The criteria considered for acceptance into the Placed Affiliate Program include, but are not limited to, app content, quality, and user overlap. To qualify, apps must be restricted to Eligible Users who are 13 years of age or older, or 16 years of age or older if Eligible Users are in the EEA. Placed reserves the right to refuse any app entry into the Placed Affiliate Program in its sole discretion.

4. Placed SDK Integration

After an Affiliate application has been approved by Placed, Placed will provide an app key and the Placed SDK. Affiliate must integrate the Placed SDK into Affiliate’s app, enable the required developer permissions, and pass other technical requirements as provided from time to time to ensure the SDK is functioning properly. Placed will test and approve the final Affiliate app build before submission to app store(s). Any changes to the Placed SDK must be tested and approved by Placed before submitting to the app store(s). The Placed SDK may be updated from time to time, and Placed shall have the right to require that Affiliate upgrade to certain SDK version(s) in order to continue to be eligible for payments under the Placed Affiliate Program. Use of outdated versions of the Placed SDK shall be at Affiliate’s own risk and will not be eligible for commissions.

5. Eligible User Consents

The Placed SDK collects and transmits to Placed location information and other information from Eligible Users’ devices in order to help Placed’s clients understand how their advertising impacts customers’ real-world behavior, to target ads to users, and for other purposes. To ensure that Eligible Users are informed of Affiliate’s data collection practices and the choices available to them, Placed requires that all Eligible Users expressly consent to the collection of location and other device information by Affiliate and consent to the sharing of information with Placed. All Affiliate apps that integrate the Placed SDK must obtain legally valid consent from Eligible Users and must include a legally compliant privacy policy that describes Placed’s collection of location and device information. Such privacy policy must be available prior to download, within the app store descriptions, and within the settings of each app that integrates the Placed SDK. Affiliate represents and warrants to Placed that: (i) it will at all times comply with developer guidelines and policies issued by any platform on which its apps are provided, including as applicable Google’s Play and Apple’s App Store guidelines; (ii) Affiliate has all rights in the Eligible User location and device data necessary to grant the rights contemplated by this Agreement; and (iii) use of the Placed SDK or any Placed product by Affiliate will not violate applicable law.

6. Special Consents for EU Traffic

If you use the Placed SDK to collect data from end users in the European Economic Area (“EEA”) or Switzerland, you are required to obtain opt-in consent for Placed to collect location data from such users. Such opt-in must: (a) specifically name Placed; (b) disclose that Placed will use information about the user’s location for the purposes of measuring the effectiveness of advertising campaigns and (c) not require the user to consent to Placed’s collection of location data as a condition of receiving access to the Affiliate app. Further, you must allow end users to opt out of Placed’s collection of location information at any time through the settings in the app. You acknowledge that Affiliate and Placed are separate and independent controllers of the information collected through any Affiliate app where the Placed SDK is installed. You further acknowledge that Placed will not pay commissions for any users in the EEA other than Eligible Users in the United Kingdom. By using the Placed SDK to collect data about residents of the EEA, Affiliate represents and warrants that it will at all times act in compliance with the General Data Protection Regulation (EU) 2016/679 on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (“GDPR”), the EU e-Privacy Directive (Directive 2002/58/EC), and any national data protection laws made under, pursuant to, replacing, or updating any of the foregoing. To the extent Affiliate transfers data from the EEA or Switzerland to Placed, such transfers will be governed by the Controller to Controller Standard Clauses. Annex 1 to this Agreement shall apply as Appendix 1 of the Controller to Controller Standard Clauses.

7. Commissions

Subject to the terms of this Agreement, Placed will pay Affiliate the commission amounts set forth in the applicable order form as compensation for Affiliate’s Daily Active Users measurement data. Payments will be distributed via a PayPal account on or around the 15th day of each month. Affiliate will not be entitled to any other payments, reimbursements, royalties or other consideration. Affiliate is solely responsible for payment of all taxes, customs, duties, fees and other amounts assessed or imposed by any government authority related to the amounts paid by Placed under this Agreement. Placed reserves the right to suspend payment of commissions to an Affiliate at any time if it suspects fraud, other improper activity or a potential breach of any of the terms in this Agreement by the Affiliate. Placed reserves the right to deduct from Affiliate’s current and future commission payments any commission fees corresponding to fraudulent or suspected fraudulent measurement data provided to Placed through the Placed SDK.

8. Publicity

Affiliates are permitted to indicate their association with Placed only through approved language to satisfy the terms of Section 5. Except as permitted above, Affiliates are not authorized to use the Placed logo, or any other Placed branding, imagery, or intellectual property, without Placed’s express written permission.

9. Indemnification

8.1 General. To the extent permitted by law, Affiliate will indemnify, defend, and hold harmless the Placed Parties from and against any and all complaints, charges, claims, damages, losses, levies, costs, liabilities, and expenses (including attorneys’ fees), whether foreseeable or contingent or not and including any direct, indirect, or consequential damages, due to, arising out of, or relating in any way to: (a) your access to or use of the Placed SDK; (b) any data collected through the Placed SDK; or (c) your breach of this Agreement.

8.2 Process. Placed will promptly notify Affiliate of any claim subject to this Section 8, but Placed’s failure to promptly notify Affiliate will only affect Affiliate’s obligations under this Section to the extent that such failure prejudices Affiliate’s ability to defend the claim. Affiliate may: (i) use counsel of its own choosing (subject to Placed’s written consent) to defend against any claim; and (ii) settle the claim as Affiliate deems appropriate, provided that Affiliate obtain Placed’s prior written consent before entering into any settlement. Placed may also assume control of the defense and settlement of the claim at any time.

10. Relationship of Parties

Affiliates are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Affiliates have no authority to make or accept any offers or representations on Placed’s behalf. Affiliates will not make any statement in their apps or otherwise that reasonably would contradict this statement.

11. Term and Termination

The term of this Agreement will begin when you click to accept or sign this Agreement and will end when terminated by either party. Either Placed or Affiliate may terminate this Agreement at any time, with or without cause, by uninstalling the Placed SDK or providing written notice via the email provided. Upon the termination of this Agreement for any reason, Affiliate’s license granted hereunder shall immediately terminate. Sections 2.2, and 7 through 15 of this Agreement, together with any other provisions that by their nature are intended to survive, will continue to apply in accordance with their terms.

12. Changes to the Placed SDK

Placed reserves the right to change the Placed SDK, any of the terms and conditions contained in this Agreement, or any policies, which may include, but are not limited to, changes in the scope of available commission schedules, payment procedures and Placed Affiliate Program policies. If Placed makes any changes, it will use reasonable efforts to notify Affiliate that this Agreement or the policies have changed. Affiliate’s continued use of the Placed SDK will confirm Affiliate’s acceptance of such changes. Placed encourages Affiliate to frequently review this Agreement and any applicable policies and guidelines to ensure Affiliate understands the terms and conditions that apply to Affiliate’s use of the Placed SDK. If Affiliate does not agree to the amended terms, policies or guidelines, Affiliate must stop using the Placed SDK. Placed and Affiliate agree as follows:

13. Limitation of Liability

IN NO EVENT SHALL ANY PLACED PARTIES BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO ANY LOSS OF USE, REVENUE, PROFITS, EXPENDITURES OR DATA), WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR INABILITY TO USE THE PLACED SDK, THIS AGREEMENT OR THE PLACED AFFILIATE PROGRAM, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN, EXCEPT FOR (A) A PARTY’S MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR (B) A PARTY’S OBLIGATION TO INDEMNIFY THE OTHER PARTY. FURTHER, PLACED PARTIES’ AGGREGATE LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE PLACED AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO THE AFFILIATE UNDER TO THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO LIABILITY.

14. Disclaimers

We make no express or implied warranties or representations with respect to the Placed SDK, Placed Affiliate Program or an Affiliate’s potential to earn income from the Placed Affiliate Program. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PLACED SDK, PLACED AFFILIATE PROGRAM AND ALL PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND AFFILIATE HEREBY WAIVES, RELEASES, AND DISCLAIMS, ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE PLACED SDK AND THE PLACED AFFILIATE PROGRAM. IN ADDITION, WHILE PLACED ATTEMPTS TO PROVIDE A GOOD USER EXPERIENCE, PLACED DOES NOT REPRESENT OR WARRANT THAT: (A) THE SERVICES WILL ALWAYS BE SECURE, ERROR-FREE, OR TIMELY; (B) THE SERVICES WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS, OR IMPERFECTIONS; OR (C) THAT ANY MATERIALS OR LOCATION DATA PROVIDED BY AFFILIATE, ELIGIBLE USERS OR A THIRD PARTY WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, PLACED PARTIES DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.

15. Dispute Resolution

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Placed and limits the manner in which you can seek relief from us.

Except for (a) any disputes regarding ownership or enforceability of intellectual property rights of a party; or (b) any claim for injunctive relief, you and Placed waive your rights to a jury trial and to have any dispute arising out of or related to this Agreement or the Placed SDK resolved in court. Instead, all disputes arising out of or relating to this Agreement or the Placed SDK will be resolved through confidential binding arbitration held in Seattle, Washington before and in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.

You and Placed agree that any dispute arising out of or related to this Agreement or the Placed SDK is personal to you and Placed and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.

You and Placed agree that this Agreement affect interstate commerce and that the enforceability of this Section will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, this Agreement and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by this Agreement. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and Placed agree that for any arbitration you initiate, you will pay the filing fee and Placed will pay the remaining JAMS fees and costs. For any arbitration initiated by Placed, Placed will pay all JAMS fees and costs. You and Placed agree that the state or federal courts of the State of Washington and the United States sitting in King County, Washington have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.

Any claim you may have arising out of or related to this Agreement or the Placed SDK must be filed within one year after such claim arose; otherwise, your claim is permanently barred, which means that you and Placed will not have the right to assert the claim. This arbitration section will survive the termination of this Agreement.

16. Miscellaneous

Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. If any of the provisions of this Agreement are determined by a court to be unenforceable, they shall be severed from this Agreement, and the remaining provisions shall remain in full force and effect. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Washington, U.S.A., without reference to its choice of law principles to the contrary, and except to the extent preempted by federal law. The 1980 UN Convention on Contracts for the International Sale of Goods or its successor will not apply to this Agreement. Subject to Section 13 Affiliate hereby consents to the jurisdiction and venue of the state and federal courts located in King County, State of Washington, U.S.A. with respect to any claim arising under or by reason of this Agreement.

This Agreement, together with any policy or guideline referenced in this Agreement, constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.

SCHEDULE A: ANNEX B TO THE CONTROLLER TO CONTROLLER STANDARD CLAUSES

Data Subjects
The Personal Data transferred concerns the following category of data subjects:

  • End users of an Affiliate app where the Placed SDK is installed in the EEA or Switzerland who have agreed to Placed’s collection of data in accordance with the requirements of the Agreement.

Categories of data
The Personal Data transferred is:

  • Location information, IP addresses, and device identifiers collected via the Placed SDK from users of Affiliate’s mobile applications who have agreed to Placed’s collection of such information.

Special categories of data
N/A

Purposes of the transfer(s)

    To enable Placed’s provision of analytics and advertising-related services

Recipients
The Personal Data may be disclosed only to the following recipients or categories of recipients depending on the Services:

  • Third-party service providers whom Placed employs to provide services on its behalf and subjects to a duty of confidentiality

Data protection registration information of data exporter (where applicable):
N/A

Additional useful information (storage limits and other relevant information):
Placed will retain the Personal Data as long as needed for the purpose for which it was collected. The Parties agree that each Party will, to the extent that it, along with the other party, acts as a data controller with respect to Personal Data, reasonably cooperate with the other Party to enable the exercise of data protection rights as set forth in the applicable data protection laws.