1. General conditions: The objective of the following General Conditions (GC) is to establish a contractual framework that governs the commercial relations that are formed through the services of promotion and monetization (Services) offered and provided through Tappcelerator Media, S.L. (Tappx) for its clients, those clients who manage apps, websites, inventory, supporting material and/or inventories of their own or of third-party companies (henceforth, Client/s) through Tappx Platform. Hereinafter, the Contract.
The access and registration to the Tappx Platform assumes the expressly acceptance of the application of the present GC, being the person who proceed with the registration and use of the Service duly authorized and empowered by the Client, knowing that this person is acting on their Client’s behalf, assuming all inherent responsibilities.
Regardless of the content of the General Terms and Conditions of the Client, the Client accepts that, regarding the commercial relationship with Tappx, these CG constitute the legal framework for both Parties. Accordingly, the Client expressly accepts that in case of conflict between the General Terms and Conditions of the Client and these GC, these GC shall prevail. The general and particular terms, as well as any other terms belonging to the Client remain expressly excluded, even if they are sent to Tappx at a later date after having agreed to these Terms.
Some of the essential components of the contract in the present GC include the purchase order or request of the Client, if any, as well all the invoices issues, and of the Tappx Policies. In the event that there is discrepancy between them, the following will prevail in this order: 1) The generated order and/or invoice issued 2) The Tappx Policies 3) the present GC.
3. Tappx Services:Tappx provides its services through its platform hosted at https://www.tappx.com/en/, hereby referred to as The Platform.
Cross Promotion Services: Tappx has constructed a Community of developers and publishers, among others, which permits the exchange of Advertising among the aforementioned Community by sharing their respective ad space inventory without direct cost to the said members of the Community. The Clients as consideration will authorize Tappx the free use of 15% of their inventory for commercialization or direct use, as Tappx deems fit.
Monetization Services:The Tappx Platform permits its users to monetize through means of marketing said user’s own ad inventory and the reception of advertisement inventory of other member of the Tappx Community, by first establishing the CPM or other available metric permitted by the Platform, all of which in accordance with the market conditions at any moment.
The commitment that Tappx makes offers the best service possible in terms of segmentation, allocation, and price generation for each impression or category of impression, yet Tappx cannot necessarily guarantee a determined price per each impression or category of impressions.
The Services include a non-exclusive right of use, non-transferable and no right to sublicensee during the Duration thereof, to use the Service and the Platform, “as is”, in accordance with these GC, for the Clients as well as the clients of our Clients.
Platform usage obliges previous registration and requires client login for every occasion of use. In the event that that login details are lost or stolen, it is the Client’s obligation to alert Tappx in order to block the account and all account activity until new login credentials are created to ender the Platform safely. The client must comply at all times with the technical requirements provided by Tappx for the proper function of the Services. More concretely, for examples, the Client accepts that for the Services to function correctly, the Client much integrate a SDK, API, or otherwise indicated code precisely. The aforesaid code can be updated by Tappx to improve Service, but the integration of the newly updated code for optimal Service performance will be the Client’s responsibility.
4. Duration: These GC take effect from the moment that the Client subscribes to one of our Services by opening an account on our Platform, and will be in force for the entire duration of Services (Duration).
5. Considerations:One on hand, the Client reserves the right to display their advertising inventory in spaces outside or other than the members of the Tappx Community while following the terms outlined in the Cross-Promotion Services. On the other hand, the Client can obtain monetary income that will be paid for by Tappx by displaying ad inventory from the other members of the Community in said Client’s own advertising space, as described in Monetization Services.
Tappx utilizes a virtual money (Tappix) which the Clients accumulate through the functions of the Platform. Clients can apply said credit (Tappix) to serve ads without direct cost through the medium of Cross Promotion Services.
The Tappix conversion is calculated on a monthly basis and the conversion shows on the Platform in a transparent and automatic manner, disappearing after the moment of consumption. Tappx reserves the right to update and modify the conversion formula and allocation of Tappix in the Platform, following notification within the Platform 30 days before the changes take effect.
At any moment, the Client owns the way to play with considerations obtained through the Platform, informing about the consumption weights between Cross Promotion and Monetization. The Client also determines the minimum CPM desired for ad inventory in regard to each available ad format (Banners, Interstitials, MRECs, etc).
6. Billing and Payments:The official currency of Tappx is the American Dollar (USD). All payments by Tappx to Clients (Monetization Services) will be made in USD. Furthermore, Client billing for revenue generated the previous month will be issued by Tappx (self-invoice) within the first 10 days of every month with a bill dating to the last day of the previous month. The Client will receive a copy of the invoice by email, and Tappx shall pay to the Client at 45 days from date of invoice, with the date of payment being the 1st of every month.
The payments will transpire via bank transfer or Paypal, in keeping with the preference indicated by the Client on the account profile. For the months where the Client’s generated income does not surpass the minimum quantity of 50$, Tappx will accumulate the quantity in the successive months, proceeding to self-invoicing and payment following the above described payment procedure at the time when total volume of accumulated revenues of the Client exceed the indicated minimum amount (50$).
It is the Client’s responsibility to confirm that the dates are correct and are duly updated for the purpose of receiving the corresponding payment. The Client expressly and irrevocably accepts that the amount shown in the Platform dashboard is the amount that must be paid to the Client, calculated under market standards, which is that the Platform calculation is the only applicable criteria. In case of discrepancy regarding the calculation reached by the Platform, Tappx agrees to show the Client the information necessary to justify the outcome reached by the calculation always and when the Client communicates said discrepancy within the timeframe of 30 days from the issue of the monthly notice that reflects the said calculation. After the 30-day timeframe has transpired, the Client shall no longer be entitled to make any claims regarding the revenue calculation.
The Client expressly accepts that in the event of fraudulent traffic detected by the Tappx anti-fraud tools, Tappx will not be responsible for paying the Client for the income generated by fraudulent activity. Additionally, the Client accepts and acknowledges that payment by Tappx will be subjected to payment by the Buyer of the spaces (impressions), committing Tappx by doing their best efforts in order to recover unpaid amounts in order to pay the Client.
7. Fraud: Tappx is especially sensitive to the fraudulent practices in the sector, and for that reason has integrated anti-fraud tool within its Services to control fraud attempts, which the Client accepts as part of the Service itself. In those cases where fraud is detected in the generation of views, impressions, or any other activity that generates fraudulent income on the part of the Client or clients of the Client, Tappx reserves the right to: i) deduct the income amount generated by fraud from the monthly invoice, action which the Client expressly and irrevocably accepts; ii) as well as terminating the rendering of services in case of fraudulent activity or illegal practices.
Fraudulent activity will be understood to include but not be limited to the following examples:
8. Taxes: With exception of the taxes on the income from Tappx, the Client is responsible for paying all the taxes, obligations, and duties or other duties, fees, etc. applicable to the Service and to use the Services as may be required by any jurisdiction which would apply in relation to the commercial transactions arising out of the use of the Services.
9. Confidentiality: The Client agrees to maintain the confidentiality of the Confidential Information during the period of effect of the Conditions and for a period of 5 years after terminating, for whatever reason, the contractual relations between Tappx and the Client.
It is confidential information, all the information related to Tappx, to the provisions of the Services and their functions, and all information generated as a consequence of using the Services on the part of the Client, including but not limited to the information of the Buyers, and the information of the Service as defined below. The Confidential Information is the exclusive property of Tappx.
The Information of the Buyer is all that information which describes the monetization of apps of our Clients through the Service, that which our Clients have access to through our Platform, but does not include out Service Information. Each Client has access to her/her own Information from the Buyer through the Website. The Client will only allow access to the Information of the Purchaser to those of its employees directly involved in the use of the Service, and will treat and maintain such information as Confidential Information.
The Information of Services is all that information which is generated from the activity that the Client does through our Services, with exception to the information of the Buyer and all the other information specifically related to Tappx and to the functions of the Services.
We use the Service Information for internal purposes, and we may share the information with third parties in aggregate form without the data being able to be specifically attributed to any Client in particular, for the development of our business and the improvement of our Services. Similarly, the Client acknowledges and accepts that other Tappx Clients can have access to relative information to the Client, for the extent necessary for the provision of the Services (for example, the buyers may have access to information related to the inventory they acquire, including the URL and the price paid for said inventory). The Client may utilize the information of the Service for internal business purposes, and additionally may share with those service providers which have assumed confidentiality obligations expressly and in writing as long as they are equally binding and restrictive as these Conditions.
10. Intellectual Property of the Platform and Services:Tappx is the exclusive holder of the rights to the Platform and the Services, including their future developments, changes, and improvements. Tappx does not relinquish rights, expressly or implied, concerning the Platform and the Services except for the rights of use as conforms to these CG. The Clients assume the obligation to not reproduce, copy, distribute, modify, develop, translate, compile, perform engineering or reverse compilation or disassemble any part of this Platform Website or Services. The Client must refrain from using the Services for purposes of comparative evaluation or obtaining information about the operation of the Service or the Platform.
11. Advertising Inventories of our Clients: Clients will be held responsible for the contents of their own ad inventories with respect to intellectual property rights and third parties. The Client is committed to have ad inventory that meets the following requirements: (i) the standards, practices, guidelines, and specifications issued by the Interactive Advertising Bureau (IAB) at all times, as well as (ii) IAB Europe EU Framework for Online Behavioral Advertising y la EASA Best Practice Recommendation on Online Behavioral Advertising, (iii) the Digital Advertising Alliance (DAA) Self-Regulatory Principles, as well as (iv) the technical specifications standards of Tappx regulations at all times.
12. Compliance and Proper Use of Services: The Client agrees to comply with all of the laws and regulations applicable in whichever country could be applicable or alleged. In particular, the Client must guarantee that all the Websites, apps, and other digital supports with which the Client uses their Services for themselves or in the name of their clients (a) Comply with all the referable laws and regulations applicable, including but not limited to the regulations about privacy protection of children and minors, like the Children’s Online Privacy Protection Act (COPPA) or its equivalent in other countries of the world, (b) will not contain content or materials that are deceitful, defamatory, obscene, invasive of the privacy of others or hateful (racially or in other manner, (c) content will not introduce virus or other malware for the Services or systems of Tappx or end users, and (d) will not infringe, violate, or appropriate unduly the intellectual property of third parties.
Tappx requires the installation of cookies, web beacons, and other types of tracking technology to provide the Services. Consequently, the Client will not make any inventory available through the Service if the end users of said inventory cannot be tracked legally or have not provided the Client sufficient permission or consent to permit that the Client tracks, using a consistent identifier to receive targeted ads based on end-user’s online behavior. The Client may not utilize the Service in ways that violate their agreements with third parties or in a manner that could pose a harm to the Service or cause damage to the reputation or the image of Tappx or its Clients. The Client may not share access or passwords from any Tappx system with third parties.
13. Non-solicitation: Neither the Client nor its representatives, including, without limitation, its executives, employees, agents or advisors, solicit, elicit, or try to provoke in any manner to advise, discuss, counsel or encourage any employee, agent, or representative of Tappx or any of its affiliate to abandon or terminate in any way the relationship of said person with Tappx, its affiliates, as the case may be, for the period of Duration and up to one year after the date of termination for any reason.
15. Responsibility: The Services are provided ‘as is provided’. Tappx does not provide any guarantee, whether express, statutory, or implies. In particular, Tappx does not guarantee that (i) the use of Services will be secure, opportune, uninterrupted or free from errors or that it functions in combination with other hardware, software, system or data; (ii) that the Service complies with the requisites or expectations of the Client; (iii) nor that all information will be exact, reliable or free of loss; (iv) nor that the Service or the infrastructure that make the Service available will be free from virus or other harmful components, expressly waiving any other jurisdiction of the Customer to any guarantee in this regard or in relation to the aptitude of the Services for a particular purpose, marketing, or with non-infringement of third-party rights. The Client understands and accepts that Tappx is the provider of the platform technology in place of an advertising agency and, as such, Tappx does not have the authority to force the advertisers and other partners to use the Platform and the Tappx community. In addition, Tappx will not be responsible for any advertiser, Client, or other partner which breaches the relevant regulations, contract, or third-party rights. Without limiting to the previous example, Tappx will in no case assume responsibility for indirect, particular, incidental, punitive, or consequential damages (except in cases of specific intent) and the full responsibility of Tappx for whatever means before the Client will be limited to the amount paid to the Client by Tappx under these Conditions for the Monetization Service during the six (6) months prior to the date which the liability originated.
16. Indemnity: The Client should faces these costs, sanctions and responsibilities of whatever type (including but not limited to costs and expenses of legal defense and legal advice) that would result for Tappx, its Directors, employees, and/or agents, in case of reclamation claims made by third parties for all causes that are in consequence of the use of Services on the part of the Client, including by infraction of applicable laws or regulations and/or from infringement of any intellectual property rights, with Client holding responsibility for the entire repayment for Tappx and its affiliates, and any of its administrators, directors and employees.
17. Miscellaneous: These General Conditions and Tappx Policies constitute the complete agreement for all parties in relation to the Services and supersede all prior agreements, negotiations and understandings with respect to the Client Service provisions. The Services may not be transferred or yielded by the Client to third-parties without previous written consent by Tappx, which reserves the right to provide the Services through affiliates and third-party service providers. However, both parties can concede the contractual relationship related to the Services (a) to a purchaser of the entire assets, shares, or business of such party by way of, or (b) to an affiliated corporation, necessitating previous written notification to the other party. If one of the provisions of these Conditions is declared null and void by the final decision passed by a court, or other competent jurisdiction, the validity of the other remaining provisions will remain unaffected. Any contractual notice should be made in writing with personal delivery to the Tappx headquarters identified in our Tappx Policies and on our Platform, and for the case of the Client, to the headquarters indicated on the Client’s account profile. We are entitled to modify the present Conditions and Policies of Tappx at any point in time, and if we do make material changes we will notify our Clients through our Services, or through other means, to provide them the opportunity to revise the changes before they become effective, at which point, in case of opposition, they may terminate the Service and close their Client account(s). Continued use of our services after publishing or sending a notice about our changes to these Conditions and/or Policies of Tappx, will indicate that the Client has given consent to updated version. Tappx will not be responsible for the damages that might occur to the Client nor to a third party as a consequence of failing to comply with the Conditions motivated by cases of Force Majeure understanding as such those cases where extraordinary circumstances not foreseeable that are out of Tappx’s control and that impede the rendering of the Service according to the Conditions, such as government regulations, cases of general emergency declared at the local or national level, unforeseen natural disasters, (including, but not limited to, fires, floods and earthquakes, strikes, lockouts, etc.), energy cuts, effects of the actions of hackers, as well as other analogous circumstances. The omission and/or delay in the fulfilment of the Conditions by either party does not under any circumstances imply the waiver of the right of such party to require the other party to its compliance thereafter. The contractual relationship between Tappx and its Clients is between independent contractors. However, in no circumstance can it be understood that Tappx acts as representative, agent, director, employee, or similar of the Client, nor vice-versa.
18. Suspension: Tappx may suspect the Services in case of misuse of them by the Client, being defined as a breach of the obligations and guarantees that correspond to the Client as outlined in the present Conditions and other Tappx Policies.
19. Client failure to comply and Termination: Both Tappx and the Client can terminate the contractual relationship at any time, by providing written notice thirty (30) days in advance. In the event of termination for whatever reason, Tappx in every form will be entitled to continuing to manage as considered the obtained inventory for a period of sixty (60) days after the date of termination. After the effective date of termination, The Tappix left unconsumed by the Client will be rendered automatically expired, forfeiting the Client’s right to them and expressly renouncing them. From the day of effective termination, the Client will not have access to the Platform.
20. Jurisdiction:Tappx and the Client will discuss and try to resolve any conflict or dispute arising from the interpretation or execution of the Conditions in good faith. At the same time, Tappx and the Client hereby waive any jurisdiction that may correspond, submitting to the jurisdiction of the courts and tribunals of the city of Barcelona for the resolution of any dispute that may arise from the application of the present Conditions which have not been able to be resolved amicably.
21. Applicable Law:The present GC, such as the rights and obligations both parties thereof and the performance of the Services shall be governed by and construed in accordance with the provisions of the laws of Spain.
DATA PRIVACY ADDENDUM
This Data Privacy Addendum ("Addendum") sets out the terms that apply to the Client and Tappx when processing Personal Data under the relationship governed between Tappcelerator Media, SL and Client through the General Conditions (the “GC”). This Addendum forms part of the GC. Capitalised terms used in this Addendum shall have the meaning given to them in the GC unless otherwise defined in this Addendum.
IT IS AGREED:
"Ad Data" has the meaning given to it in Section 2 of this Addendum;
“Client Apps” means the mobile applications owned and/or controlled by the Client, including all content, images, music and text contained therein, that the Client wishes to use with the Tappx SDK and Tappx Platform
"Controller" means the entity that determines the purposes and means of the processing of Personal Data;
"Demand Partners" means Tappx’s media buying clients, including but not limited to advertisers and attribution partners, demand side platforms, ad exchanges, agencies, agency trading desks and ad networks who submit "bids" for Tappx ad inventory.
"EU Data Protection Law" means (i) prior to 25 May 2018, the EU Data Protection Directive (Directive 95/46/EC) and on and after 25 May 2018, the EU General Data Protection Regulation (Regulation 2016/679); (ii) the EU e-Privacy Directive (Directive 2002/58/EC); and (iii) any national data protection laws made under or pursuant to (i) or (ii) (in each case, as superseded, amended or replaced);
"Personal Data" means any information relating to an identified or identifiable natural person (which shall include for the avoidance of doubt, any personally identifiable information) or as otherwise defined in applicable Privacy Requirements;
"Privacy Requirements" means all applicable privacy and data protection laws and regulations, in each case as amended superseded or replaced, including but not limited to Children’s Online Privacy Protection Act (“COPPA”) and EU Data Protection Law (in each case, as amended, superseded or replaced);
“Tappx Ads” means advertisements, sourced by or on behalf of Tappx, which are routed and/or served by the Tappx Platform to the Client Apps;
"Tracking Technologies" means mobile SDKs, unique identifiers, web beacons, pixels and similar tracking technologies;
"Data subject", "Processing" (and "process") shall have the meanings given to them in EU Data Protection Law.
3. Relationship of the Parties: Parties agree that Client is and will at all times remain the controller of the Ad Data processed by Tappx hereunder and to the extent the Ad Data contains Personal Data, Tappx shall process such data as a separate and independent Controller (where applicable Privacy Requirements recognize such concept) and only for the Permitted Purposes. In no event will the Parties process Personal Data under this Agreement as joint Controllers. Nothing in the Agreement (including this Addendum) shall limit Tappx from collecting or using data that Tappx would otherwise collect and process independently of the Client’s use of the Tappx Platform and Tappx SDK. Both Parties reserve the right to modify, suspend or terminate the Agreement should the other Party violate this Addendum.
3.2 Client agrees and acknowledges that it is responsible for compliance with all its obligations as a controller under EU Data Protection Laws, specifically with reference to transmission of Ad Data to Tappx (including providing any required notices and obtaining any required consents and/or authorizations, or otherwise securing an appropriate legal basis under EU Data Protection Law), and for any decisions and actions taken by the Client with respect to processing such Ad Data.
4. Permitted Purposes: Tappx shall process Ad Data solely for the following purposes: (a) accessing the Client Apps, or the servers that make them available, to cause the routing, serving, displaying, targeting, and tracking the performance of Tappx Ads on the Client Apps; and (b) disclosing Ad Data (i) to third parties (including Demand Partners) as reasonably necessary in connection with the operation of the Tappx Platform (sub-processors); (ii) if required by any court order, process, law or governmental agency; or (iii) generally when it is aggregated, such that the specific information relating to the Client or any underlying end user is not directly identifiable ("Permitted Purposes").
5. Client’s Responsibilities.
6. Co-operation and Data Subject Rights: The Parties shall, on request, provide each other with all reasonable and timely assistance (at their own expense) to enable the other to comply with its obligations under the Privacy Requirements, specifically in order to enable the other to respond to: (i) any request from a data subject to exercise any of its rights under EU Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable) in relation to the Ad Data ("Data Subject Rights"); and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Ad Data. Each Party shall promptly inform the other if it receives any request directly from a data subject to exercise a Data Subject Right in relation to the Ad Data.
6.1 Tappx shall assist the Client in complying with any data subject requests, including but not limited to any requests to delete Personal Data, by removing and/or deleting any data stored by Tappx which relates to the relevant user.
7. International Transfers: To the extent that Tappx processes (or causes to be processed) any Personal Data protected by EU Data Protection Law and/or originating from the EEA (including the United Kingdom and Switzerland) ("EEA Personal Data") in a country outside of the EEA, it shall first take all such measures as are necessary to ensure an adequate level of protection for such EEA Personal Data in accordance with the requirements of EU Data Protection Law. We ensure it is protected by making sure at least one of the following safeguards is in place:
by transferring your personal information to a country that has been deemed to provide an adequate level of protection by the European Commission;
by using specific contracts approved by the European Commission which give your personal information the same protection it has within the EEA including to US;
where we use providers based in the US, we may transfer data to them if they are part of the Privacy Shield which requires them to provide similar protection to personal data shared between Europe and the US.
8. Tappx Data: To the extent Tappx shares any Personal Data with the Client in connection with the Tappx SDK and Tappx Platform, the Parties agree that the Client shall process such data as a separate and independent Controller (where applicable Privacy Requirements recognize such concept) for the limited purpose of performance under this Agreement consistent with the consents given by the data subjects and as such, the Client shall be independently responsible for the obligations that apply to it as a Controller under the Privacy Requirements. The Client further acknowledges that Tappx may transfer to the Client Personal Data protected by EU Data Protection Laws. To the extent the Client processes any such data, the Client agrees that, where applicable, it shall comply with the Standard Contractual Clauses as provided in Eu Data Protection Laws, to provide an adequate level of protection for the cross-border transfer of Personal Data. The Client shall notify Tappx if it makes a determination that it can no longer provide such protection and in such event, shall cease processing or take other reasonable and appropriate steps to remediate (if remediable) any processing until such time as the processing meets the level of protection as is required by the Standard Contractual Clauses.
9. EU Model Clauses: For the purpose of the EU Model Clauses, where applicable, the parties agree that (i) Client will act as the data exporter on its own behalf and on behalf of any of its entities and client(s) (if applicable), (ii) Tappx will act on its own behalf and/or on behalf of the relevant affiliates as the data importers, (iii) any sub-processors will act as ‘subcontractors’ pursuant to Clause 11 of the EU Model Clauses. “EU Model Clauses” shall mean the standard contractual clauses annexed to the EU Commission Decision 2010/87/EU of 5 February 2010 for the transfer of personal data to processors established in countries under the Directive 95/46/EC, or any successor standard contractual clauses that may be adopted pursuant to an EU Commission decision.
10. Indemnity: The Client shall indemnify, defend and hold harmless Tappx against and from all loss, liability, damages, costs (including legal costs), fees, claims and expenses arising out any third party claims which Tappx may incur or suffer by reason of any breach of this Addendum by the Client.
11. Survival: This Addendum shall survive termination or expiry of the Agreement. Upon termination or expiry of the Agreement, Tappx shall immediately discontinue any processing of the Ad Data and shall delete any Personal Data in its possession or control and/or on the Tappx SDK or Tappx Platform. Where a separate agreement exists between Tappx and the Client othern than the GC, and to the extent applicable, in the event of a conflict between the provisions of this Addendum and such Agreement and/or GC, the provisions of this Addendum will take precedence.
DATA PROCESSING PRINCIPLES
a) such decisions are made by the data importer in entering into or performing a contract with the data subject, and
ii. the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties.
b) where otherwise provided by the law of the data exporter.