Last Updated: November 08, 2017
BY INTERACTING IN ANY WAY WITH THE HEYZAP SOFTWARE DEVELOPMENT KIT (“HEYZAP SDK”), INCLUDING, BUT NOT LIMITED TO INSTALLING, LINKING, OR OTHERWISE INTEGRATING, THE HEYZAP SDK IN YOUR APPLICATION OR GAME, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (“YOU”) UNCONDITIONALLY CONSENT AND AGREE TO BE BOUND BY AND A PARTY TO THESE TERMS AND CONDITIONS (“AGREEMENT”).
2. MINORS - The Heyzap SDK and Network is not developed for, nor directed at, children under the age of 13. We do not knowingly collect, solicit or use personally identifiable information from children under the age of 13 to the extent prohibited by the Children’s Online Privacy Protection Act. We do not knowingly create profile segments or behaviorally target ads to children under the age of 13. Unique identifiers are the only “personally identifiable information” under the Children’s Online Privacy Protection Act that Heyzap collects from end users, and they are used only to support internal operations.
3. PROPRIETARY RIGHTS - Heyzap owns all worldwide rights, title and interest in and to the Heyzap SDK and the Heyzap Network and associated services and any software programs or tools, utilities, technology, inventions, devices, specifications, documentation, ideas, concepts, know-how, processes, methodologies, techniques and materials of any kind used or developed by Heyzap or its personnel in connection with the creation, implementation, maintenance and operation of the Heyzap Network (collectively “Heyzap Materials”), including all modifications and derivative works associated with any of the foregoing and including all worldwide patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how, moral rights, and any other intellectual property rights recognized in any country or jurisdiction in the world (“Intellectual Property Rights”) associated with the Heyzap SDK and Network. You agree that You have no rights in the Heyzap SDK, Heyzap Network, and/or Heyzap Materials, or in any Intellectual Property Rights therein. You shall not: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Heyzap SDK, Heyzap Network, or Heyzap Materials in any way; (b) modify or make derivative works based upon the Heyzap SDK, Heyzap Network, or Heyzap Materials; (c) reverse engineer, decompile, modify, translate, disassemble or create derivative works based upon Your access to or usage of the Heyzap SDK, Heyzap Network, or Heyzap Materials; (d) rent, lease or otherwise transfer rights to any aspect of the Heyzap SDK, Heyzap Network, or Heyzap Materials; or (e) take any act to remove, obscure, interfere with or modify the presentation or functionality of any aspect of the Heyzap SDK, Heyzap Network, or Heyzap Materials.
You own all worldwide rights, title and interest in and to your mobile applications or any content integrated with the Heyzap SDK, and any software programs or tools, utilities, technology, inventions, devices, specifications, documentation, ideas, concepts, know-how, processes, methodologies, techniques and materials of any kind used or developed by company or its personnel in connection with the creation, implementation, maintenance and operation of the Your mobile applications (collectively “Your Materials”), including all modifications and derivative works associated with any of the foregoing and including all worldwide patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how moral rights, and any other intellectual property rights recognized in any country or jurisdiction in the world (“Intellectual Property Rights”) associated with Your mobile applications, content, and/or Your Materials. Heyzap agrees that it has no rights in Your mobile applications, content, and/or Your Materials or in any Intellectual Property Rights therein. Heyzap shall not, unless directly associated with the grant of license: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party; (b) modify or make derivative works based upon Your mobile applications, content, and/or Your Materials; (c) reverse engineer, decompile, modify, translate, disassemble or create derivative works based upon Heyzaps ’ access to or usage of Your mobile applications, content, and/or Your Materials; (d) rent, lease or otherwise transfer rights to any aspect of Your mobile applications, content, and/or Your Materials; or (e) take any act to remove, obscure, interfere with or modify the presentation or functionality of any aspect of Your mobile applications, content, and/or Your Materials.
4. TRADEMARKS. “Marks” shall mean all trademarks, service marks, tradenames, logos of other words identifying or used in connection with the Games and respective company. All Marks will remain the exclusive property of the respective company. You hereby grant Heyzap and the members of the Heyzap Network the non-exclusive right to use the Marks and images from the games on the websites owned or operated by Heyzap and the members of the Heyzap Network and on third-party websites and in other media in connection with the distribution of the games and related promotional efforts.
5. USER DATA. You must prominently notify and obtain affirmative consent from the user before his or her data is collected or used by your application and/or website. The notification must clearly disclose that both you and Heyzap collect and use the user’s data; You must take commercially reasonable steps, compliant with applicable laws, rules and regulations, to protect any data you collect with or in conjunction with the SDK or that users submit to the Heyzap SDK, Heyzap Network, and/or Heyzap Materials through your application and/or website (“Heyzap Data”) and your authentication key from unauthorized use, disclosure or access. You must not give your authentication key to another party. Heyzap may revoke Your authentication credentials at any time, for any reason or no reason, with or without notice, and without liability to You or any other person. You must notify Heyzap immediately in the event of any unauthorized access to Heyzap Data, Your authentication key, and/or Your application and/or website. If Your application and/or website authenticates Heyzap users. You must not include functionality in your application and/or website that requests or collects personal identification information from users who You know or have reason to know may be under the age of 13. If your application and/or website requires or permits the transfer of user information outside of the user’s home country (including transfers to Heyzap’s servers, which are in the U.S.), you must ensure that such transfer complies with applicable laws. You must obtain affirmative consent from a user before you post any information on their behalf on your application and/or website, the Heyzap network or through any third party service (including but not limited to Twitter, Facebook, MySpace, Vine, Tumblr, Instagram, or any other social network). You will not directly or indirectly transfer any Heyzap Data, including user data or Heyzap user IDs, to (or use such data in connection with) any ad network, ad exchange, data broker, or other advertising or monetization related toolset, even if a user consents to such transfer or use. By “indirectly,” we mean you cannot, for example, transfer data to a third party who then transfers the data to an ad network. By “any Heyzap Data,” we mean any and all data obtained through use of the SDK, including aggregate, anonymous or derivative data. You will not sell, rent, or transfer any Heyzap Data. If you are acquired by or merge with a third party, you may continue to use user data within your application and/or website, but you may not transfer data outside your application and/or website.
6. DATA PRIVACY. Heyzap strongly encourages everyone to respect the privacy of the Users of the Heyzap Network and associated application and/or services. Specifically, Heyzap endeavors to be fully compliant with all federal and state privacy laws of the United States of America, including the Children’s Online Privacy Protection Act, as amended from time to time. Your use of the Heyzap SDK and Heyzap Network must comply with all applicable international, federal, and state laws, regulations, governmental rules and guidance, and court orders, including without limitation COPPA, the CAN-SPAM Act of 2003, and FTC Act prohibitions on unfair or deceptive acts or practices; and comply with all applicable industry and self-regulatory standards. Each party shall retain its own respective user data in compliance with all federal and state privacy laws of the United States of America or game developer’s country of origin. Neither party shall exchange data with the other unless the parties have entered into a separate agreement to govern such exchange of data. Heyzap is based and operates in the United States and expressly disclaims any liability for compliance with the laws of other countries or regions. Heyzap will process Personal Data in accordance with the Data Processing Addendum attached hereto as Appendix A
7. YOUR DATA. Subject to the terms and conditions set forth in the Heyzap Advertiser’s Agreement, any information You submit, upload, post, create, or add to the Heyzap Network through your use of the Heyzap SDK or Heyzap Materials (including, without limitation, the use by users of your application and/or website) shall be deemed a user submission. Heyzap shall have the right to use, reproduce, transfer, sublicense and otherwise exploit perpetually any data or other information that You submit, upload, post, create or add to the Heyzap Network through your use of the Heyzap SDK or Heyzap Materials (including, without limitation, the use by users of your application and/or website). You represent and warrant that you have own or otherwise have the right to distribute or otherwise disseminate your user submissions and further agree to indemnify Heyzap for any claims related to submitting, uploading, posting, creating, or otherwise adding Your user submissions to the Heyzap Network.
8. FEES. Access to the Heyzap SDK is currently provided for free, but Heyzap reserves the right to charge for access to the Heyzap SDK in the future, at its sole discretion. If we do charge a fee for using the Heyzap SDK or any feature thereof, you do not have any obligation to continue to use the Heyzap SDK or the applicable feature.
9. CONFIDENTIALITY. Each party agrees not to disclose Confidential Information provided by the other party without their prior written consent. “Confidential Information” includes, without limitation: (a) all intellectual property, including, without limitation, all software, technology, programming, technical specifications, materials, guidelines and documentation relating to the Heyzap SDK, Heyzap Network, and/or Heyzap Materials; (b) financial information (including pricing), business information, including, without limitation, operations, planning, marketing interests, products and any other reporting information (including revenue, if any, paid to You by Heyzap; and (c) any other information designated in writing as “Confidential” or an equivalent designation or that would otherwise be reasonably considered confidential or proprietary given its nature or the circumstances under which it was disclosed. Confidential Information does not include information that has become publicly known through no breach by You or Heyzap of these confidentiality obligations or information that has been: (a) independently developed without access to Confidential Information, as evidenced in writing; (b) rightfully received from a third party without a breach of confidentiality by such third party; or (c) required to be disclosed by law or by a governmental authority. Additionally, each Party shall have the right to disclose any and all of the Confidential Information (i) to its respective legal, and financial advisors who are subject to a fiduciary duty of confidentiality and (ii) subject to confidentiality obligations consistent with the terms of this Section 6, to banks, members of the Heyzap Network, proposed investors, and financing sources and their advisors; to other persons as necessary in connection with the enforcement of this Agreement or rights under this Agreement; or in connection with a merger or acquisition or proposed merger or acquisition, or the like
11. WARRANTY DISCLAIMER - THE HEYZAP SDK IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, HEYZAP AND ITS VENDORS EACH DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE HEYZAP SDK, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FURTHER, HEYZAP DISCLAIMS ANY WARRANTY THAT YOUR USE OF THE HEYZAP SDK WILL BE UNINTERRUPTED OR ERROR FREE.
12. SUPPORT AND UPGRADES - This Agreement does not entitle You to any support for the Heyzap SDK, Heyzap Network, and/or Heyzap Materials, unless You make a separate arrangement with Heyzap and pays any fees associated with such support. Any such support provided by Heyzap shall be subject to the terms of this Agreement as modified by the associated support agreement.
13. LIABILITY LIMITATION - REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, IN NO EVENT WILL HEYZAP OR ITS VENDORS BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE HEYZAP SDK, EVEN IF HEYZAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. IN ADDITION, HEYZAP DISCLAIMS ALL LIABILITY OF ANY KIND OF HEYZAP’S VENDORS, CONTRACTORS, OTHER USERS OF THE HEYZAP SDK, AND/OR USERS OF THE HEYZAP NETWORK OR HEYZAP APPLICATION.
14. INDEMNITY. You agree that Heyzap, its directors, officers, employees, and agents, shall have no liability whatsoever for any use You make of the Heyzap SDK, Heyzap Network, and/or Heyzap Materials. You shall indemnify and hold harmless Heyzap from any and all claims, damages, liabilities, costs and fees (including reasonable attorneys’ fees) arising from Your use of the Heyzap SDK, Heyzap Network, and/or Heyzap Materials.
15. TERM AND TERMINATION. This Agreement shall continue until terminated as set forth in this Section. Either party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if You violates any provision of this Agreement. Any termination of this Agreement shall also terminate the license granted hereunder. Upon termination of this Agreement for any reason, You shall cease using, destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Heyzap SDK and all Heyzap user data, if any, and shall so certify to Heyzap that such actions have occurred. Heyzap shall have the right to inspect and audit Your facilities to confirm the foregoing. Sections 3 and 5 through 16 and all accrued rights to payment shall survive termination of this Agreement.
16. TERMINATION FOR CAUSE. In the event Heyzap detects fraudulent installs or clicks on any Advertisements by You, Heyzap has the right to immediately terminate your account and remove your application from the Heyzap Network. Heyzap may also, at its sole discretion, seize any funds in any account belonging to you to use at Heyzap’s sole discretion, including but not limited to paying back advertisers. You forfeit your right to contest Heyzap’s termination of your accounts and seizure of funds. Additionally, Heyzap has the right to clawback any funds paid to you within the last ninety (90) days by reversing the ACH wire transfer as necessary in order to compensate any advertisers for Your fraudulent activity. In the event the amount in question exceeds the amounts recovered or held by Heyzap, Heyzap has the right to bring an action against You in any court of law of its choosing and to enforce any judgment received against you to the fullest extent of the law.
17. MISCELLANEOUS. Unless the parties have entered into a written amendment to this agreement that is signed by both parties regarding the Heyzap SDK, this Agreement and the Heyzap TOS constitute the entire agreement between You and Heyzap pertaining to the subject matter hereof, and supersedes any and all written or oral agreements with respect to such subject matter. This Agreement, and any disputes arising from or relating to the interpretation thereof, shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California by two residents thereof and without reference to its conflict of laws principles or the United Nations Conventions for the International Sale of Goods. Except to the extent otherwise determined by Heyzap, any action or proceeding arising from or relating to this Agreement must be brought in a federal or state court in San Francisco County, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its costs and attorneys’ fees. This Agreement may be amended only by a writing executed by Heyzap. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Heyzap to act with respect to a breach of this Agreement by You or others does not constitute a waiver and shall not limit Heyzap’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to You and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving You) without Heyzap’s prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. Heyzap expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.
Data Processing Addendum
This Data Processing Addendum (”DPA”) supplements and forms part of any existing and currently valid agreement (”Agreement”), either previously or concurrently made between Heyzap or any of its affiliates (”Heyzap”, ”we” or ”us”) and you regarding the processing of Personal Data, as defined hereunder, as part of the service(s) provided by Heyzap to you under the Agreement (”Service(s)”). In any conflict between this DPA and the Agreement, the terms of this DPA shall prevail.
Any capitalized terms not defined herein will have the meaning as set forth in the Agreement.
1. Definitions. Unless when otherwise stated in this DPA, the following words and expressions shall have the following meaning:
1.1 ”Data Subject” shall mean the identified or identifiable natural person whose personal data are the subject of the Processing under this DPA. The categories of Data Subjects whose Personal Data are subject to Processing under this DPA are listed in this DPA
1.2 ”Law” shall mean applicable data protection and privacy laws, rules and regulations, including without limitation the EU Regulation 2916/679 (“General Data Protection Regulation”);
1.3 ”Personal Data” shall mean any information relating to an identified or identifiable natural person as defined in Art 4 Nr.1 of the General Data Protection Regulation. The categories of Personal Data subject to Processing under this Agreement are listed in this DPA;
1.4 ”Processing” shall mean any operation or set of operations which is or are performed on Personal Data, whether by automated means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, duplication, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;
1.5 ”Purposes” shall mean the limited, specific and legitimate purposes of the Processing, as described in this DPA and/or the Agreement.
2. Data Processing
2.1 Within the scope of the Service(s), you hereby engage Heyzap to collect, process and/or use Personal Data on your behalf. In respect of any Personal Data supplied by you to Heyzap in relation with your use of the Service(s) and to the extent that EU data protection laws apply to the processing of the Personal Data, you are considered as the Data Controller and Heyzap is considered the Data Processor. You acknowledge and agree that you have the sole responsibility on the lawfulness of the Processing and warrant to Heyzap that you are legally allowed to engage Heyzap for processing the Personal Data on your behalf and have provided all necessary notices and obtained all required consents from the Data Subjects for the Processing described in this DPA.
2.2 Neither party shall do, nor cause or permit to be done, anything which may knowingly or intentionally result in a breach of the applicable Law.
2.3 Heyzap will only Process Personal Data on your behalf of and in accordance with your instructions. You instruct Heyzap to Process Personal Data for the following purposes: (i) Processing in accordance with this DPA, the Agreement and pursuant to the features and limitations of the applicable Service(s) which Heyzap provides you under the terms of the Agreement; and (ii) Processing to comply with other reasonable instructions provided by you, where such instructions are consistent with the terms of the Agreement. Heyzap will be under no obligation to comply with instructions that Heyzap deems as violating applicable Laws. Processing outside the scope of this DPA (if any) will require prior written agreement between Heyzap and you on additional instructions and terms for processing.
2.5 Heyzap only collects information that you have authorized it to collect. Heyzap may process the following information:
Information about an end user’s device, such as device type and model, network provider, browser type, language, device IP address, operation system, network connection type, device GPS location (only if user provides permission) mobile advertising identifier such as the Advertising ID (Apple IDFA or Google AAID),
Information about your mobile app, such as package name, key words, version.
Additional user Information we may receive from you, such as users’ age, gender, zip code and GPS location.
Information we may receive from you or from third parties engaged on your behalf by Heyzap as non-precise device location based on IP address, device specifications and user’s interest’s information.
2.6 Data Subjects affected by the Processing under this DPA are the end users of your mobile app and/or website or service(s). Heyzap uses the Personal Data solely for providing the Service(s). Processing operations by Heyzap include the Processing of the aforementioned Personal Data to serve end users with contextual ads and/or targeted ads that are relevant to the end users and may interest the end users, to produce advertising reports on the performance of the campaigns on your mobile app and/or website and to improve the advertising performance on your mobile app and/or website. In that context Heyzap will also combine on your behalf Personal Data from different sources to improve Heyzap’s Service(s). Heyzap also processes your Personal Data for fraud prevention, bot detection, rating, analytics, viewability, geo location services, ad security & verification services and problem & fault management.
2.7 Heyzap imposes appropriate contractual obligations upon its personnel who engage in the Processing of Personal Data, including relevant obligations regarding confidentiality, data protection and data security. Heyzap ensures that its applicable personnel were informed of the confidential nature of the Personal Data, have received appropriate training and have executed written confidentiality agreements. Heyzap will further ensure that such confidentiality agreements survive the termination of the employment or engagement of its personnel.
2.8 Organizational and technical measures. Heyzap shall take appropriate technical and organizational measures to ensure a level of security appropriate to the risk involved in Processing your Personal Data. These measures are aimed at ensuring that your Personal Data is reasonably protected against accidental or unauthorized destruction, accidental loss, as well as against unauthorized alteration of, disclosure of and access to your Personal Data -all, as specified at www.Fyber.com/securitypolicy (the “Data Security Addendum”). To the extent that the technical and organizational measures taken by Heyzap do not fulfil your requirements, you must notify Heyzap in written or in text form thereof prior to the start of any Processing of your Personal Data. In that case, both parties will negotiate in good faith an adjustment of the technical and organizational measures and the compensation for those required adjustments. The technical and organizational security measures may be adjusted by Heyzap at any time insofar as long as the security level does not fall below the security level of the technical and organizational security measures set forth in the current security measures provided by Heyzap.
3.1 Heyzap shall use commercially reasonable efforts to provide in a prompt manner such co-operation as is reasonably necessary to enable you to ensure compliance with applicable Law. In particular, Heyzap will notify you without undue delay of, unless prohibited under the applicable Law:
3.1.1 any violation which has taken place during the Processing of your Personal Data by Heyzap of (i) any provisions of the terms in this DPA, and/or (ii) any instructions issued by you pursuant to the terms of this DPA;
3.1.2 any official competent supervisory proceedings regarding the Processing of your Personal Data conducted by data protection authorities vis-à-vis Heyzap, as well as support and cooperation which may be required from you in such inspections/proceedings conducted vis-à-vis you upon your request;
3.1.3 any legal or factual circumstances preventing Heyzap from executing any of your instructions under the terms of this DPA; and
3.1.4 any material changes impacting the technical and organizational security measures implemented by Heyzap which cause such measures to fall short of Heyzap’s data security obligations under this DPA.
3.2 In the event that Heyzap detects or in the event that facts justify the assumption that (i) personal data processed by Heyzap on your behalf has been unlawfully transmitted or (ii) third parties have unlawfully gained access to such data or (iii) the integrity or confidentiality of your Personal Data has been compromised in any other way (data security incident), Heyzap shall give you without undue delay written notification specifying the date and time, nature, and extent of the incident. The notice will also include a description of potential consequences and potential adverse effects of the incident. Furthermore, Heyzap will inform you about the measures it has taken in order to remediate the risks involved with the incident, to mitigate potential adverse effects and to prevent the occurrence of a similar incident in the future.
3.3 To the extent Heyzap receives complaints and/or inquiries from Data Subjects or third parties requesting information regarding the Processing of your Personal Data, Heyzap shall forward such complaints and/or inquiries to you without undue delay. Heyzap will not provide any information to any Data Subjects or third parties, unless (i) Heyzap is statutorily obligated to provide such information or (ii) you have given Heyzap instructions to do so. To the extent that Heyzap shall be obliged to provide to third parties information regarding your Personal Data on the basis of statutory provisions, Heyzap shall inform you in due time prior to providing the information, of the recipient, the date and time, the content of the information to be issued, and the legal basis thereof.
3.4 Heyzap will support you and assist in handling Data Subjects’ requests to exercise their rights to access, rectify, erase or such other rights afforded to Data Subjects under the applicable Law, in relation to their Personal Data, by taking reasonable measures based upon your instructions. Should you be obligated to any Data Subject or third party to provide information regarding the Process of your Personal Data by Heyzap, Heyzap will use commercially reasonable efforts to support you in the provision of such information.
3.5 Audit right. To the extent that the applicable Law requires you to be in a position to monitor Heyzap’s Processing of your Personal Data adequately, you, as the Controller, will have the right to request Heyzap for an audit, at any time, to the extent necessary to check whether the following are being complied with by Heyzap, as the Processor, and its sub-processors: (i) any provisions of the Law, (ii) the terms of this DPA, and (iii) your instructions as the Controller. However, Heyzap may provide to you a copy of its most recent third-party audits or certifications by an independent, third-party auditor, as applicable, or any summaries thereof in order to fulfil your audit rights. If an audit is required by Law, which requirements cannot be fulfilled by the provision of such a certification, you may conduct, either by yourself or through a third party independent contractor selected by you at your expense, an on-site audit of Heyzap’s architecture, systems and procedures relevant to the security and integrity of your Personal Data. Such audit may be conducted subject to the following terms: (i) the audit will be pre-scheduled in writing with Heyzap, at least 30 days in advance and will be performed not more than once a year; (ii) all your personnel who perform the audit, whether employed or contracted by you, will execute Heyzap’s standard non-disclosure agreement prior to the initiation of the audit, and a third party auditor will execute a non-competition undertaking as well; (iii) you will take all necessary measures and verify that the auditors do not access, disclose or compromise the confidentiality and security of Personal Data other than Your Personal Data on Heyzap’s information and network systems; (iv) you will take all necessary measures to prevent any damage or interference with Heyzap’s third party service providers’ information and network systems; (v) you will bear all costs and assume responsibility and liability for the audit and for any failures or damage caused as a result thereof; and (vi) any audit activities on Heyzap third-party service providers’ information systems will be pre-scheduled and agreed with the applicable providers; (vii) you will keep the audit results in strict confidentiality, will use them solely for the specific purposes of the audit under this section 3.4, will not use the results for any other purpose, or share them with any third party, without Heyzap’s prior explicit written confirmation; (viii) If you are required to disclose the audit results to a competent authority, you will provide Heyzap with a prior written notice, explaining the details and necessity of the disclosure and further provide all necessary assistance to prevent such disclosure.
4.1 Heyzap engages sub-processors to perform certain Processing of your Personal Data on your behalf. Prior to an engagement with a sub-processor, Heyzap requires or receives adequate assurances that the sub-processor complies with obligations substantially similar to the obligations as set out in this DPA.
4.2 Upon the execution of this DPA, you hereby give Heyzap your consent to engage the companies detailed at http://www.fyber.com/subprocessors as sub-processors.
4.3 Where a sub-processor fails to fulfill its data protection obligations or statements, Heyzap will remain fully liable to you for the performance of the sub-processor’s obligations to the same extent that Heyzap would be liable to you directly under the terms of this DPA, except as otherwise set forth in the Agreement, if Heyzap would have performed the obligations of the sub-processor.
4.4 Heyzap will inform you of its engagement with a new sub-processor. You may object to the use of new or additional sub-processor by promptly sending Heyzap a written notice. If you object to the new sub-processor, Heyzap will make commercially reasonable efforts to provide you the same level of Service(s) without the use of such sub-processor. Notwithstanding, your objection and the results thereof will not amend, alter or reduce your obligations under the Agreement.
4.5 Notwithstanding the provisions here above (e.g. prior consent by you), you hereby authorize Heyzap to sub-contract the Processing to service providers based outside of the European Economic Area (EEA), to the extent necessary, at Heyzap sole discretion, to duly perform the Service(s) on condition that the service providers provide sufficient guarantees in relation to required level of data protection, e.g. through a Privacy Shield certification according to EU Commission Decision 2016/1250, or a sub-contracting agreement which is based on the standard contractual clauses launched by virtue of the EU Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC (the “Model Contract Clauses”), or based on such other applicable trans-border data transfer mechanisms. Any such Model Contract Clauses concluded by Heyzap shall be treated as if concluded in the name and on behalf of you. You shall be responsible to obtain regulatory approvals from the relevant data protection authorities, when required by Law.
5. Anonymized Data. Heyzap may process data based on extracts of Personal Data on an aggregated and non-identifiable forms, for Heyzap’s legitimate business purposes, including for testing, development, controls and operations of the Services, and may share and retain such data at Heyzap’s discretion.
6. Term. This DPA shall become effective upon its execution by the Parties. It shall terminate upon the end of the Processing of Personal Data by Heyzap in accordance with the Agreement unless otherwise provided in this DPA. After the termination of this DPA or earlier upon request of you, Heyzap will depending on your instructions, permanently delete all your Personal Data and copies thereof in its possession within 30 days.
7. Notices. If you wish to make any inquiries about this DPA, please contact Heyzap’s legal team at: email@example.com