Last Updated: April 24, 2014
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.
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. TERM4 6 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.