“Alternative Payment Revenue”
means revenue derived from the Alternative Payment Service (defined below).
“Alternative Payment Revenue Share”
means Developer’s share of revenue derived from Completed Surveys (defined below) through the Alternative Payment Service which TapResearch will pay to Developer, in accordance with the Revenue Share Schedule (defined below). Additionally, Developer hereby acknowledges and agrees that Completed Surveys shall be categorized as either “qualified” or “unqualified” and subject to different payout rates based on such categorizations in accordance with the definitions for such terms as set forth in the Revenue Share Schedule.
“Alternative Payment Service”
means Developer’s service within each Application (defined below) that allows Users (defined below) to participate in Survey Offers in order to receive incentives within the Application including without limitation virtual currency, unlocke content or features, level advancement, or additional strength, power, or life/lives.
means an online website or mobile application developed and offered by Developer, and approved by TapResearch, which (b) meets the Eligibility Requirements set forth in Section 2 below.
means a Survey Offer completed by a User, wherein the User provides a genuine response to all of the questions presented in the Survey Offer and takes such other steps as may be required to complete the Survey Offer, as determined by TapResearch in its sole discretion. For the avoidance of doubt, any responses to Survey Offers that are either partially or entirely fake, completed by anyone other than a User, or incomplete, as determined by TapResearch in its sole discretion, shall not be considered a Completed Survey.
“Revenue Share Schedule”
means the schedule setting forth the Alternative Payment Revenue Share, which is subject to modification by TapResearch in its sole and absolute discretion at any time without notice, and which TapResearch will make available to Developer.
means the software development kit, the source and object code contained therein, and all associated documentation, including any and all modifications, improvements and updates thereof, provided by TapResearch to Developer for the purpose of making Survey Offers available to Users through the Alternative Payment Service.
means any and all surveys and the like that are furnished by TapResearch to Developer, which are presented, offered and delivered to Users via the Alternative Payment Service within each Application. Each Survey Offer will contain a number of survey questions to be determined by TapResearch in its sole discretion.
means a human end user of the Application who is not utilizing the Application via a robot or algorithm.
means all data and information generated or otherwise collected in connection with the Survey Offers and SDK.
Developer’s eligibility for participation in TapResearch’s “Developer Network” and ongoing eligibility to remain in the Developer Network is conditioned upon Developer meeting and continuing to meet the following minimum requirements (“Eligibility Requirements"):
- Developer has submitted and received TapResearch’s written approval of Developer’s application for inclusion in the Developer Network (the “Program Application”), which approval shall be granted or withheld in TapResearch’s sole discretion;
- Developer is at least eighteen (18) years of age or a corporate legal entity in good standing;
- Developer has the necessary rights and authority to enter into and perform the obligations required of it under this Agreement;
- Developer is in compliance with all terms and conditions set forth in this Agreement;
- All information which Developer has provided to TapResearch, including but not limited to information provided in the Program Application and all other information about Developer’s business provided in connection with the Developer Network, including all relevant payment information (e.g., a W-9), is and will remain accurate, complete and current;
- Developer is the registered owner of the Application(s) listed on the Program Application, including all domain names, and such Application(s) generates a majority of its traffic from Users located within the U.S.;
- None of the Application(s) contain any unlawful, defamatory, offensive, libelous, harassing, abusive, fraudulent, pornographic or obscene content or material;
- Each Application(s) is technically and fully compatible with the Google Android (if deployed on Android) and the Apple iOS (if deployed on Apple iOS) operating system and delivery platform;
- Developer and its Application(s) are not subject to any pending lawsuits, fines, or government or regulatory actions; and
Developer will provide TapResearch with any information, records, or materials that TapResearch requests to verify Developer’s compliance with the Eligibility Requirements and the terms and conditions of this Agreement. TapResearch may also demand at any time that Developer remove the SDK and/or Survey Offers from certain Application(s) with or without cause, and Developer will immediately comply with all such demands.
Survey Offers and Application
Implementation of Survey Offers.
Developer will display all Survey Offers through the Alternative Payment Service in accordance with this Agreement. Developer shall comply with any placement and delivery requirements, any requirements to implement code and any technical specifications that are provided by TapResearch at any time to enable proper display of the Survey Offers. Any exceptions to the forgoing requirement must be approved by TapResearch in writing. Developer will be solely responsible for any and all costs Developer incurs for the display of the Survey Offers in accordance with such specifications and for any programming related to the same which Developer elects to undertake. Subject to the terms of this Agreement, Developer shall have a non-exclusive, revocable and limited right during the Term, to use the SDK solely for purposes of implementing the Survey Offers within its Application as set forth in this Section 3.1. TapResearch reserves the right to update the SDK from time to time, in its sole discretion. To the extent necessary, Developer will update its Application with the latest SDK, within ten (10) days of its receiving notice of such updated SDK. Developer understands that a failure to update an Application with the latest SDK may result in such Application being incapable of rendering Survey Offers.
Unless TapResearch approves specifically in writing: (i) Developer may only use the SDK as provided by TapResearch, without modification; (ii) Developer shall not modify or alter the content, text or appearance of any Survey Offers, or aggregate the Survey Offers with other offers (e.g., by creating an aggregate offerwall that combines Survey Offers with other offers); (iii) Developer shall not make available other offers (whether its own or from third parties) similar to the Survey Offers in connection with any Application that provide incentives to Users in exchange for acting upon such promotional offers; and (iv) Developer may not provide the SDK or disclose its contents to any third party nor implement the SDK in any applications other than the Application(s) without TapResearch’s prior written approval.
During the Term (defined in Section 13 below), TapResearch will be the exclusive provider of, and Developer shall not retain any third party to provide, any offers similar to or competitive with the Survey Offers being provided, as determined by TapResearch in its sole discretion. Developer acknowledges that its Alternative Payment Revenue Share set forth in the Revenue Share Schedule is in partial consideration for the exclusivity set forth in the preceding sentence (“Exclusivity”). None of the remedies provided herein shall prevent TapResearch from exercising any and all remedies it is afforded whether at law or in equity. Notwithstanding anything to the contrary, TapResearch shall have no obligation to pay Developer any amounts to the extent such amounts are attributable to Surveys completed during a breach of the Exclusivity set forth herein.
Subject to the terms of this Agreement, for each Completed Survey received by TapResearch, TapResearch shall pay Developer the Alternative Payment Revenue Share in accordance with the Revenue Share Schedule: (a) on a monthly basis, and (b) within forty-five (45) days following the last day of each calendar month period during which the Completed Survey was received by TapResearch; provided, however, that amounts payable of less than $250 will be held until amounts due to Developer equal or exceed $250. Developer shall be solely responsible for the payment of, and shall pay when due, all applicable federal and state taxes, including any sales, use, excise or transfer taxes and other taxes associated with payments to Developer under this Section 4 (except for taxes assessed on TapResearch’s net income), and shall indemnify TapResearch for all costs, losses, liabilities and expenses, including penalties, arising from any failure to do so. Further, TapResearch will provide a monthly statement to Developer that documents the calculation of the Alternative Payment Revenue Share due to Developer in accordance with the Revenue Share Schedule based on the number of Completed Surveys. Developer further agrees that TapResearch shall have no obligation to issue the Alternative Payment Revenue Share to Developer if TapResearch has not received remittance from the applicable Survey Offer sponsor of all amounts due to TapResearch. In the event of such non-payments or bad debts, TapResearch reserves the right to offset future Alternative Payment Revenue Share payments to Developer or invoice Developer for such amount owed in its sole discretion.
Fraud and Incompleteness.
TapResearch shall not be obligated to pay Developer for any fraudulent actions generated by any person, bot, automated program or similar device in connection with any Survey Offers, as determined by TapResearch, in its sole discretion. Developer shall use its best efforts to promptly notify TapResearch of such fraudulent activity. Additionally, TapResearch will have no obligation to make any payments to Developer based on incomplete Survey Offers (i.e., those that are not Completed Surveys). Developer will forfeit and (if applicable) have offset any payments made which are determined by TapResearch (in its sole and absolute discretion) to have been generated by Developer or from the Application(s) in violation of these Terms or other policy or guidelines established by TapResearch.
Developer hereby grants to TapResearch a royalty-free, fully paid up, sub-licensable, transferrable, nonexclusive, worldwide and perpetual license to reproduce, display, distribute and otherwise use the trademarks, service marks, logos or other indicia of origin associated with Developer for the purpose of indicating that Developer is a client of TapResearch in TapResearch’s advertising, marketing or other promotional materials. During the Term, both parties shall have the right to issue press releases discussing the partnership created under this Agreement, provided that both parties shall approve of each press release in writing prior to any distribution of such press release (which approval shall not be unreasonably withheld). Neither party may discuss the details of this Agreement as part of the press release.
Compliance with Laws.
Developer represents and warrants that: (a) it will display the Survey Offers and provide any data to TapResearch as required under this Agreement in compliance with all applicable local, state, national and international laws, rules and regulations, including but not limited to the Children’s Online Privacy Protection Act of 1998 (“COPPA”), the CAN-SPAM Act of 2003, any relevant data protection or privacy laws, and any laws regarding the transmission of technical data exported from Developer’s country of residence; (b) the Application(s) (i) are and will be in compliance with all applicable local, state, national and international laws, rules and regulations, and contractual obligations between Developer and any third party; and (ii) do not and will not violate any third party’s intellectual property or proprietary rights; (c) Developer will not, will not agree to, and will not authorize or encourage any third party to: (i) interfere or attempt to interfere with the proper working of the Alternative Payment Service or prevent others from using the Alternative Payment Service; or (ii) use the Alternative Payment Service or SDK for any fraudulent or unlawful purpose. Violation of any of the forgoing may result in immediate termination of this Agreement at TapResearch’s sole discretion. TapResearch reserves the right, but will have no obligation, to review Developer’s display of the Survey Offers and/or use of the SDK and to use the Application(s) at any time in its sole discretion, in order to determine whether a violation of this Agreement has occurred or to comply with any applicable law, regulation, legal process, or governmental request.
Representations and Warranties.
Without limiting any other representation, warranty or covenant herein, Developer hereby represents and warrants toTapResearch that: (a) it has the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of such party; (c) it has obtained and shall maintain all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder (including, any and all necessary rights or consents from Users to allow User Data to accrue to TapResearch pursuant to this Agreement); and (d) it will comply with all applicable laws, rules and regulations in the performance of this Agreement. If this Agreement is being entered into by a company or other legal entity, then the person agreeing to the terms and conditions of this Agreement on behalf of that company or entity (i.e., by checking the box or clicking to accept where such option is presented) hereby represents and warrants that he or she is authorized and lawfully able to bind that company or entity to this Agreement.
Developer agrees to indemnify, defend and hold TapResearch and its affiliates and their respective officers, directors, employees, agents, and independent contractors harmless from and against any losses, costs, liabilities, damages, claims and expenses, including attorneys’ fees, arising out of: (a) the breach of the representations, warranties and covenants made by Developer in this Agreement, or (b) claims that any applications (including the Application(s)), products, services or software distributed, made available or developed by Developer infringe any third party’s intellectual property rights, privacy, rights of publicity or other rights. Developer shall not enter into any settlement for which indemnity is sought unless: (a) such settlement includes an unconditional release of TapResearch from all liability on all claims; or (b) the TapResearch gives its prior written approval, which shall not be unreasonably withheld.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TAPRESEARCH MAKES NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ANY MATTER, INCLUDING SURVEY OFFERS AND THE SDK, WHICH ARE OFFERED SOLELY ON AN “AS-IS” BASIS, AND TAPRESEARCH EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, OR THAT THE SDK AND SURVEY OFFERS OR ANY USE THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE. TAPRESEARCH DOES NOT WARRANT OR GUARANTEE THE RESULTS OF USING THE SDK OR MAKING AVAILABLE THE SURVEY OFFERS, INCLUDING THAT DEVELOPER WILL EARN ANY PARTICULAR AMOUNTS (OR ANY AMOUNTS AT ALL).
Limitation of Liability.
UNDER NO CIRCUMSTANCES WILL TAPRESEARCH OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF TAPRESEARCH OR A TAPRESEARCH AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL TAPRESEARCH’S OR ITS AFFILIATES’ MAXIMUM AGGREGATE LIABILITY TO DEVELOPER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNTS PAID OR PAYABLE TO DEVELOPER HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM OR $500, WHICHEVER IS LESSER. THE PARTIES AGREE THAT THE FORGOING PROVISIONS FAIRLY ALLOCATE THE PARTIES’ RISKS AND ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN.
Developer acknowledges that TapResearch will provide Survey Offers for display on the Application(s) pursuant to this Agreement. Developer agrees that it will use any data (including any usage data and compilations thereof), information or software provided by TapResearch to Developer only for the purpose of displaying Survey Offers for TapResearch on the Application(s) as set forth in this Agreement. As between the parties, TapResearch and its licensors will exclusively own and retain all rights, title, and interest in and to: (a) all Survey Offers, (b) the SDK, and (c) any usage data and compilations thereof and any User Data collected through the Survey Offers and SDK. As between the parties, Developer and its licensors will own and retain all rights, title, and interest in and to the Application(s), excluding the SDK. No rights or licenses, are granted by TapResearch or its licensors under this Agreement except as expressly set forth in this Agreement, and TapResearch hereby reserves all rights not granted herein.
Confidentiality. “Confidential Information”
of TapResearch shall mean: (a) the Survey Offers, prior to publication; (b) any data (including any usage data and compilations thereof), information or software relating to or collected through the Survey Offers and SDK (including any and all User Data); and (c) the SDK; and any other information disclosed by TapResearch that is designated in writing, or identified orally at time of disclosure as “confidential” or “proprietary.” Developer will keep confidential, and will not use for any purpose, or disclose to any third party, any Confidential Information of TapResearch except as strictly required to fulfill its obligations or exercise its rights under this Agreement. The forgoing restriction does not apply to information to the extent that such information: (a) has been independently developed by the receiving party without access to the other party’s Confidential Information; (b) has become publicly known through no breach of this Section 12 by the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure; (d) has been approved for release in writing by the disclosing party; or (e) is required to be disclosed by a competent legal or governmental authority, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure and uses its best efforts to assist in obtaining an order to protect the information from public disclosure.
Term and Termination.
This Agreement will begin upon TapResearch’s acceptance of Developer’s Program Application, Developer’s satisfaction of the Eligibility Requirements described above, and Developer’s agreement to and compliance with this Agreement and will end upon the earlier of (i) when terminated by either Developer or TapResearch pursuant to this Agreement; when the then current term expires (the “Term”). If not otherwise terminated under this Section 13, the Agreement will have an initial term of 1 year, and will automatically renew for additional one-year terms upon each anniversary of the Effective Date unless either party gives written notice of non-renewal on or before thirty days before the end of the then current term. TapResearch may terminate this Agreement at any time for any reason or for no reason upon notice to Developer, including but not limited to: (a) actual or suspected failure to meet the Eligibility Requirements; (b) actual or suspected violation of Section 6 (Compliance with Laws); (c) failure to generate at least twenty-five ($25.00) in Alternative Payment Revenue Share, in the aggregate, over the course of six (6) consecutive months; or (d) any other actual or suspected violation of this Agreement. Either party may terminate this Agreement in the event of the other party’s breach by providing notice in writing within thirty (30) days, and in the event the breaching party fails to cure such breach within such thirty (30) day period, the contract will immediately terminate at the expiration of such thirty (30) day period. Upon termination of this Agreement, Developer may, except as otherwise provided herein, receive payments owed to Developer up to the effective date of termination. In addition, upon any termination, all license rights and other privileges granted to you herein shall terminate immediately, and Developer shall immediately cease any and all use of the SDK. Sections 1 and 6 through 15 shall survive any termination of this Agreement.
Governing Law and Jurisdiction.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco, California, before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS' Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a federal or state court in San Francisco County, California, to whose venue and jurisdiction each party irrevocably submits. Notwithstanding the forgoing, any dispute arising hereunder will be negotiated in good faith between the parties within forty-five (45) days commencing upon written notice from one party to the other and neither party will file an action to arbitrate or litigate prior to the termination of such forty-five (45) day period.
Developer may not transfer or assign any of its rights or licenses granted to it hereunder, whether in whole or in part, without first obtaining the prior written consent of TapResearch, and any attempt to do so will be null and void. TapResearch may assign or transfer this Agreement without Developer’s consent. TapResearch and Developer are both independent contractors, and neither TapResearch nor Developer shall be considered an agent, representative or partner of the other. This Agreement sets forth the entire agreement between TapResearch and Developer, and supersedes any and all prior or contemporaneous agreements (whether oral or written) with respect to the subject matter set forth herein. Any notices under this Agreement shall be sent to any of the contacts the respective parties have provided to each other in writing, by facsimile or nationally recognized express delivery service and deemed given upon receipt. The waiver of any breach or default of this Agreement by a party will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision of this Agreement is declared void, illegal or otherwise unenforceable, then the provision is automatically amended to the minimum extent required to make it valid, legal, enforceable and nearest to the original intent, and all other provisions shall remain in full force and effect.
TapResearch shall have the right to, in its sole discretion and at any time, modify, alter, or change the terms and conditions of this Agreement and/or to cease its operation of the Developer Network.