By submitting any Order, clicking your acceptance to the TOU or Agreement, or by using the Services or the Codes you signify that you have read and agree to be bound by the terms and conditions of the Agreement and that you have the full authority to enter into and bind the Customer to the Agreement.
Devtodev may modify the Agreement from time to time as described herein. Your continued use of the Services following such modifications shall constitute your consent to the modified Agreement.
If you do not agree to all of the terms of the Agreement then you may not use the Services.
Capitalized terms not otherwise defined in the Agreement shall have the meaning specified in this Section 1.
- “Affiliate” shall mean an entity that, directly or indirectly, controls, is controlled by, or is under common control with a party to this Agreement, where control means the power to direct the affairs or management of such entity, whether through the ownership of at least 51% (fifty-one percent) of the voting securities, by contract, as trustee or executor.
- “Devtodev” means Devtodev Ltd., a limited liability company organised and existing under the laws of the State of Israel, company registration no. 516835758, having its registered office at Sapir St. 1, Herzliya, Israel, 4685205.
- “Anonymous Aggregated Data” means data that is derived from the combination of End User Data with other data so that its results are aggregated and anonymized in such a manner that it is not identifiable in any way to any person or entity (including Customer).
- “Collection Technologies” means such Codes or similar data collection technologies that are used to collect End User Data by Devtodev.
- "Customer Data" means the End User Data and Registration Information.
- "Documentation" means implementation manuals and other policies and instructions relating to the use and operation of the Code and Services made available by Devtodev.
- “End User(s)” means such end users who have interacted with, or viewed, your advertising and marketing materials, or who use or have used your Applications, websites, products and/or services.
- "Order" means an order of Services by a Customer whether submitted through an order form or similar document or whether online registration and submissions where the Subscription Package and/or the applicable subscription terms, including ordered Services, subscription period, fees, purchased features and quantity limits are specified.
- “Restricted Data” means: (i) name and contact details (e.g. address, phone numbers); (ii) financial information (e.g. bank account numbers, credit/debit card information, or any information regulated under the Gramm–Leach–Bliley Act ); (iii) any health information (including information regulated under the Health Insurance Portability and Accountability Act); (iv) government IDs (e.g. driver’s license, passport, national ID, social security, TIN or EIN numbers); (v) any information regarding children (i.e. under the age of 16 (sixteen) or as otherwise defined by applicable children protection laws (“Children”)), including the Children’s Online Privacy Protect Act) including any End User Data related to Children, unless appropriate parental consent has been provided; (vi) any information defined as ‘Special Categories of Data’ under Article 9 of the GDPR (e.g. biometric or genetic data, information about ones religious beliefs, race, sex life or orientation); and (vii) any personally identifiable information other than End User Data that is afforded protection under specific regulation or laws.
- "Report" means the various attribution and analysis reports of End User Data generated through the Service.
- “Service(s)” means the services provided by Devtodev, including through its platform available on www.devtodev.com or any other Website operated by Devtodev.
- "Subscription Package" means the specific Services to which you have subscribed and their corresponding fees and package features, including without limitation, support terms and quantity limits provided by Devtodev for the specified subscription package term, all as further described in an Order.
- “Customer”, “you”, and “your” means the entity specified in the Order that is procuring the Services.
2. ORDER AND ACCOUNT REGISTRATION.
- Devtodev shall provide Services to you as set forth in an Order. An Order shall become effective only upon its execution by an authorized signatory of both parties or if submitted through an online form upon Devtodev’s approval and acceptance.
- In order to access and use the Services, you may need to register an account. Any information provided during such registration must be current, complete and accurate (“Registration Information”). You must ensure Registration Information is up to date at all times. You will at all times be responsible for maintaining the security of your account credentials and shall take all necessary steps to protect your account credentials from disclosure. You agree to notify Devtodev immediately upon learning of any unauthorized use of your account or any other breach of security of your account.
3. ACCESS AND USE RIGHTS.
- Subject to your payment of all due fees, Devtodev grants you a limited, non-transferable, non-exclusive, right to: (i) access and use the Services pursuant to the terms of this Agreement; and (ii) integrate the Codes into Customer (or where applicable, Agency Clients) websites, advertisements and such number of Customer’s mobile applications specified in an Order (“Applications”) in accordance with the Documentation and solely for Customer’s internal business needs.
- You agree that you will not, nor will you allow any third party to: (i) reverse engineer or otherwise attempt to discover the underlying code of the Services; (ii) copy, modify, adapt, translate or otherwise create derivative works of the Codes or Services; (iii) rent, lease, sell, assign, or otherwise transfer rights in the Codes or Services to any third party; (iv) remove any proprietary notices or bypass any security measures of Devtodev with respect to the Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material that violates third party privacy rights; (vii) send material containing software viruses, worms, trojan horses, or other harmful computer code, files, scripts, agents, or programs; (viii); or (ix) use the Services in a manner that is not compliant with all applicable laws, rules or regulations and within the scope of the limited rights granted hereunder.
- Either party (a “Disclosing Party”) may disclose to the other party (a “Receiving Party”) certain confidential information regarding its technology and business (“Confidential Information”). Devtodev’s Confidential Information includes, without limitation, the pricing of this Agreement. Subject to the terms and conditions of this Agreement, Receiving Party agrees to keep confidential and not disclose or use any Confidential Information except to support its use or provision of the Services. Confidential Information shall not include information that Receiving Party can show: (a) was already lawfully known to, or independently developed by, Receiving Party without access to or use of Confidential Information; (b) was received by Receiving Party from any third party without restrictions; (c) is publicly and generally available, free of confidentiality restrictions; or (d) is required to be disclosed by law, regulation or is requested in the context of a law enforcement investigation, provided that Receiving Party provides Disclosing Party with prompt notice of such requirement and cooperates in order to minimize such requirement. Receiving Party shall restrict disclosure of Confidential Information to those of its Affiliates, employees, agents, consultants and subcontractors who have a reasonable need to know such information and who are bound by written confidentiality obligations no less restrictive than those set out herein. Customer will not disclose any information regarding the results of any testing or evaluation of the Services to any third party without Devtodev’s prior written consent. The non-disclosure and non-use obligations set forth in this Section 4 shall survive the termination or expiration of this Agreement for a period of 5 (five) years.
5. DATA AND PRIVACY.
- Devtodev strictly prohibits you from using the Services to collect or otherwise enable the collection of any Restricted Data. You hereby warrant that you shall not configure the Codes or Services to collect any Restricted Data through the Services. Additionally, you agree that when it is known to you or when you should reasonably be aware that End User Data may be collected from Children, you shall configure the Codes and Services appropriately to ensure compliance with applicable children data protection and privacy laws (including the Children’s Online Privacy Protection Act) and platform policies (e.g. Apple App Store and Google Play).
- Customer is solely responsible for ensuring its implementation of the Codes and use of the Services, including any data collected as a result of such implementation is in compliance with all applicable laws, regulations and platform policies (e.g. Apple App Store and Google Play). You will ensure that you have a lawful basis and/or right to (i) collect the Customer Data and use it (including any sharing) for your intended purposes; and (ii) enable the processing of such Customer Data by Devtodev as described in this Agreement. Without derogating from the generality of the foregoing, you shall: (A) provide appropriate notice to End Users which at a minimum: (i) complies with any applicable law or regulation; (ii) provides End Users with accurate disclosure of your privacy practices, including in relation to your use of third party services such as Devtodev, the type of information collected when using the Services, and how End User Data may be used or shared by you and third parties (including Devtodev); and (B) obtain, where required by law, appropriate rights and/or consents: (i) to collect and use the End User Data and enable the collection, use and processing of End User Data by Devtodev pursuant to the terms of the Agreement; and (ii) to place Collection Technologies (including the Codes) on the browsers or devices of End Users. Without limiting any remedies available to Devtodev under this Agreement or applicable law, Devtodev reserves the right to suspend performance of the Services if it reasonably deems that Customer has not provided appropriate notice or obtained appropriate consent as required under this section. You shall indemnify, hold harmless and defend Devtodev, at your expense, from any and all third-party claims, actions, proceedings, and suits brought against Devtodev or any of its officers, directors, employees, agents or Affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, court costs, reasonable attorneys' fees and other litigation expenses) incurred by Devtodev or any of its officers, directors, employees, agents or Affiliates, arising out of your breach of this Section 5, including your failure to provide appropriate notice or obtain appropriate consent in connection with your and/or Devtodev’s use and processing of data as provided under this Agreement.
- If any End User Data collected through your use of the Service is deemed Personal Data as defined in the Devtodev Data Processing Addendum (“DPA”) available at: https://www.devtodev.com/dpa, then the terms and conditions set forth in the DPA shall apply to the use and processing of such Personal Data and shall be incorporated by reference into, and made an integral part of, this Agreement.
- You shall be required to pay Devtodev all Subscription Package fees set forth in an Order or as otherwise set in our pricing catalogue that was made available to You on our website or through such other notice. Subscription Packages are billed according to the Subscription Package Terms and will automatically renew and be billed at the end of the Subscription Package Term unless otherwise specified in an Order. Unless otherwise set forth in an Order, all fees due will be billed to Customer’s credit card and Customer hereby authorizes Devtodev to collect any due fees from such credit card (which shall include Your PayPal or similar payment provider as applicable) up until the Subscription Package Term is terminated pursuant to the terms in this Agreement and/or Order. In the event wire or other method of payment is agreed by Devtodev in an Order Customer shall pay the due amounts within 15 days of invoice. If Devtodev is unable to collect due fees through a Customer’s submitted credit card, Customer shall be required to pay the due amounts immediately upon demand. Any Subscription Package fees unpaid by you by the due date shall thereafter bear interest at the rate of twelve percent (12%) per annum (or the maximum amount permitted by applicable law, whichever is less), during the period between the date the payment first becomes due and the date such amount is actually paid. Without derogating from any other remedies available to Devtodev under this Agreement or by law, if you have any outstanding debts in connection with any Services provided by Devtodev under any current or past Order, then, without affecting any of your payment obligations under the Agreement (including, any payment obligations under an Order) and without limiting any other rights that may be available to Devtodev under the Agreement, Devtodev shall have the right to suspend or cease performance of the Services until such debt is paid. All amounts owed to Devtodev are non-cancellable and fees paid are non-refundable, except as explicitly otherwise stated in the Agreement.
- Devtodev may use various billing service providers. When using such provider’s services, you agree to be subject to, and to comply with, the terms and policies of such provider and to pay any bank or financial transaction fees applied by such providers. Devtodev shall not be liable and/or responsible for any acts or omissions of such billing providers.
- All fees payable hereunder, do not include any local, state, or federal sales, use, excise, personal property, VAT or other similar taxes or duties, including, without limitation, any withholding tax, and any such taxes, to the extent legally applicable, shall be borne and paid by you. For the avoidance of doubt, you shall not be responsible for any payment of taxes based on Devtodev’s net income.
- Devtodev may increase its fees for the Services at any time provided that such updated fees shall apply upon the end of Customers then applicable Subscription Package term. If updates to such pricing are above 3% and were not published on the Devtodev website or otherwise notified to Customer at least 30 days in advance then notwithstanding the termination notice requirements set forth in Section 12, Customer shall have the right to terminate the Agreement and its Subscription Package upon written notice to Devtodev prior to its renewal with the updated pricing
- You agree to indemnify, hold harmless and defend Devtodev, at your expense, from any and all third-party claims, actions, proceedings, and suits brought against Devtodev or any of its officers, directors, employees, agents or Affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, court costs, reasonable attorneys' fees and other litigation expenses) incurred by Devtodev or any of its officers, directors, employees, agents or Affiliates, arising out of, or relating to: (i) your breach of any terms of the Agreement; or (ii) your implementation and use of the Services in violation of applicable laws, rules or regulations.
- Devtodev agrees to indemnify, hold harmless and defend you, at its expense, from any and all third-party claims, actions, proceedings, and suits brought against you or any of your officers, directors, employees, agents or Affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, court costs, reasonable attorneys' fees and other litigation expenses) incurred by you or any of your officers, directors, employees, agents or Affiliates, arising out of, or relating to, a claim that the Codes and/or Services infringe the intellectual property rights of a third party. Notwithstanding the foregoing, Devtodev shall have no responsibility or liability for any claim to the extent resulting from, or arising out of: (a) use of the Codes or Services not in compliance with the Agreement, the Documentation or applicable law; (b) the combination of the Codes or Services with any other code, platform or services not provided by, or explicitly approved in writing, by Devtodev; (c) the modification of any Codes or Services by any party other than Devtodev or in any way not expressly permitted by the Documentation; or (d) the use of any Code that is not the most up-to-date Code as made available to you by Devtodev (“Indemnity Exclusions”).
- The obligations of either party to provide indemnification under this Agreement will be contingent upon the indemnified party: (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought (provided that the indemnified party’s failure to notify the indemnifying party will not diminish the indemnifying party’s obligations under this Section, except to the extent that the indemnifying party is materially prejudiced as a result of such failure); (ii) cooperating fully with the indemnifying party (at the indemnifying party’s expense); and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services. Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own selection at its own expense.
8. THIRD PARTIES.
- To the extent the Services offer any integrations with third party services that enable Customer to share or receive data from or to such third-party services, Customer represents and warrants that it has the right and authority to receive and share such data. Furthermore, Customer acknowledges and agrees that: (i) the sharing of such data between Devtodev and the third parties shall be enabled only to the extent supported by the third party and Devtodev; (ii) any use of such data by the third party shall be subject to Customer’s own agreements with the third party; (iii) Devtodev shall have no liability or responsibility in connection with any actions or omissions by the third parties; and (iv) Customer will indemnify, hold harmless and defend Devtodev from and against any claims or actions or any related liabilities arising from your instructions to send or receive the data through the integration
9. WARRANTIES AND DISCLAIMER OF WARRANTIES.
- Each party represents and warrants that: (a) it is duly organized under applicable law and has sufficient authority to enter into this Agreement; (b) the person entering into this Agreement is authorized to sign this Agreement on behalf of such party; (c) the execution and performance under this Agreement does not conflict with any contractual obligations such party has to any third party; and (d) its services, materials and products do not, to the best of its knowledge, infringe the intellectual property rights of any third party. In addition, the Customer represents and warrants that it owns, or has all appropriate rights and/or licenses to, the Applications.
- EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, THE SERVICES, DOCUMENTATION, CODES AND REPORTS ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY DEVTODEV, EITHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. DEVTODEV DOES NOT WARRANT THAT THE SERVICES, DOCUMENTATION, CODES AND/OR REPORTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. DEVTODEV SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, RELIABILITY, OR COMPLETENESS OF ANY DATA OR REPORT GENERATED OR MADE AVAILABLE THROUGH THE SERVICE. CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR ANY ACTIONS, CONCLUSIONS OR INFERENCES DRAWN FROM ITS USE OF THE SERVICE OR ANY REPORTS GENERATED BY OR THROUGH THE SERVICE. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
10. LIMITATION OF LIABILITY.
- DEVTODEV WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR FOR ANY LOST PROFITS OR LOSS OF REVENUE, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF Devtodev HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, Devtodev’S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF, OR RELATING TO, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICE IN THE 12 (TWELVE) MONTHS PRECEDING THE APPLICABLE CLAIM, IN THE AGGREGATE.
- SOME OF THE LIMITATIONS PROVIDED HEREIN MAY NOT BE ALLOWED UNDER THE LAWS OF CERTAIN JURISDICTIONS. IF ANY SUCH LAW IS DEEMED TO APPLY TO THE AGREEMENT THEN THE LIMITATIONS SET FORTH HEREIN SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER SUCH LAWS.
11. DEVTODEV PROPERTIES.
- As between the parties, Devtodev shall retain all right, title and interest in and to the Codes, Anonymous Aggregated Data and Services and all technology utilized by Devtodev to provide the Services, including any and all patents, copyrights, trademarks, trade names, trade secrets and other intellectual property rights relating to, embodied by, or incorporated in any of the foregoing (the “Devtodev Properties”) and including any updates, upgrades, enhancements, modifications or improvements made to, or derivatives of, the Devtodev Properties. If Customer provides Devtodev with any feedback regarding any Devtodev Properties, Devtodev may use all such feedback without restriction. Furthermore, Devtodev may use Anonymous Aggregated Data for research and analytics purposes and improvement and marketing of the Services. Nothing herein shall be interpreted to provide Customer any rights in the Devtodev Properties except the limited rights explicitly set forth herein.
- At the end of the Subscription Package term, your Subscription Package will automatically renew, unless otherwise explicitly stated in an Order or if either party provides the other with written notice 30 (thirty) days prior to the end of the then applicable Subscription Package term. You agree that (i) the fees for each unit of pricing during any renewed Subscription Package term may be increased automatically without the requirement of any additional consent by up to 3% (three percent) of the applicable fees in the immediately preceding Subscription Package term; and (ii) any free period provided during the expiring Subscription Package shall not apply to the renewed Subscription Package term.
- Each party may terminate the Agreement upon written notice if the other party is in material breach of the terms of the Agreement, and such breach is not cured within 30 (thirty) days from the receipt of written notice of such breach. Furthermore, Devtodev shall have a right to immediately suspend the Services in the event of: (i) non-payment; (ii) any breach by you of these TOU; or (iii) if required to avoid harm to Devtodev or any third party. Devtodev may terminate this Agreement or cease providing the Services to Customer at any time and for any reason provided that in the event such termination is without cause and during a Subscription Package term where payment was made by Customer then Devtodev shall refund a prorated portion of the collected fees.
- Upon any termination or expiration of the Agreement, Devtodev will cease providing the Services to you, and you will delete all copies of the Codes from all Applications under your control or your account. In the event of any termination: (a) you will not be entitled to any refund of any fees for Services not yet rendered through the date of termination (except as specified in Section 12(b) above or where explicitly stated otherwise in an Order); and (b) any: (i) outstanding balance through the date of termination; and (ii) other unpaid payment obligations will be immediately due and payable in full. Any obligations of the parties that by their nature are intended to survive the termination or expiration of the Agreement, including the obligations of the parties in Sections 1, 4-7, 8(a), 9-11, 12(d), 14(b) and (c) and 15 of this TOU, shall survive any termination or expiration thereof.
13. MODIFICATIONS TO THESE TERMS OF SERVICE.
- Devtodev reserves the right to modify the terms of this TOU from time to time; provided that any such revised terms will only apply to an existing Subscription Package upon the earlier of: (i) the next renewal of such Subscription Package; or (ii) 30 (thirty) days from the date the notice of such change was posted on this page (or the Devtodev website) or otherwise provided to you.
14. GENERAL CONDITIONS.
- Devtodev may, from time to time, publish and make available to you certain updates to the Code. You agree to implement any such updates. Devtodev shall have no liability for any damages that may result from your failure to implement such updates.
- You authorize Devtodev to use your company name, logo or other applicable trademarks, at any time, for the purpose of referencing you as a customer on the Devtodev Website or in other promotional marketing materials.
15. MISCELLANEOUS; APPLICABLE LAW AND VENUE.
- Devtodev shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.
- If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
- This Agreement shall be governed by and construed under the laws of Israel without reference to its conflict of law principles. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Tel Aviv, Israel.
- Any notices to Devtodev must be sent to: Devtodev Legal Dept.: Sapir St. 1, Herzliya, Israel, 4685205, via first class or air mail or overnight courier, and are deemed given upon receipt. The failure of Devtodev to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
- You may not assign or otherwise transfer any of your rights hereunder without Devtodev's prior written consent, and any such attempt is void. Devtodev may freely assign its rights under this Agreement. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
16. ADDITIONAL TERMS FOR FREE SUBSCRIPTION PACKAGES AND ACCOUNTS.
- Devtodev may offer, from time to time, a free Subscription Package with the intention of enabling you to use and evaluate the Services. Any use of Devtodev’s Services under a free Subscription Package and account is subject to, and governed by, the terms of this Agreement and the following terms and conditions. Such free Subscription Package may not provide the full functionality of the Services as made available with the various paid Subscription Packages.
- You acknowledge and agree that Devtodev shall have the full right and authority to cease providing the free Subscription Package to you, at any time, and for any and no reason whatsoever, and to make any modifications to, or remove, any features and functionalities of the Service, including, without limitation, limiting the amount of conversions, events, or other parameters available to you during any given period and/or ceasing to provide certain reports or any other functionality or features available through the Service. Devtodev shall not be responsible, or liable to you or any third party, for any loss of data, including any reports, analysis or Customer Data resulting from such cessation or modification of the free Subscription Package. You are strictly prohibited from using more than one free Account. Furthermore, any technical support or account management shall be provided (if at all) in Devtodev’s sole discretion.
- Notwithstanding anything to the contrary under this Agreement, you acknowledge that during your use of the free Subscription Package, Devtodev disclaims all warranties and representations, express or implied and the free Subscription Package is provided “as-is”.
- Without derogating from Devtodev’s termination rights pursuant to this Agreement, it is hereby clarified that if you have registered for a free Subscription Package and have not accessed the Services or performed any activity within the Services for a period of 90 days, Devtodev may terminate your subscription, cease data collection and/or permanently remove your Account including, any Customer Data or other data associated with your Account with or without any prior notice to you and without any liability to Devtodev.