General Terms and Conditions for APPCARRY PRIVATE LIMITED
1. SCOPE OF APPLICATION
1.1 The following General Terms and Conditions including the Annexes (“Agreement”) apply to
all contracts and services rendered between and/or by APPCARRY PRIVATE LIMITED (“Appcarry”)
and its customers (“Customer”) with regard to the use of
Appcarry products and Appcarry services
(hereinafter collectively “Services”). This Agreement
constitutes a material part of each
agreement unless expressly agreed otherwise in writing.
1.2 This Agreement and Conditions apply to any future business transaction between Appcarry
and the Customer,
even without express reference thereto.
1.3 Any deviating terms and conditions of the Customer as well as any deviations and/or
amendments to this Agreement shall only become part of this Agreement if they have been
expressly acknowledged by Appcarry in writing (email is sufficient). This Agreement also
exclusively if Appcarry has not explicitly objected any contrary terms and conditions.
1.4 Appcarry reserves the right to modify this Agreement with effect for the future at any
time. In this case, Appcarry will notify the Customer of these changes. The changes shall be
deemed to be accepted if the Customer does not object within three weeks after receipt of
the amendment notification. Appcarry will inform the Customer in its amendment notification
about the Customer’s right to object and the effects of a lack of objection. If the Customer
rejects the changes, Appcarry has the right to terminate this Agreement.
2. OFFER AND CONCLUSION OF CONTRACT
2.1 Offers by Appcarry are subject to change. The subject matter of this Agreement are the
Services as offered in the current service description at the time this Agreement is
executed. Appcarry reserves the right to make technical changes and improvements to the
Services within a reasonable scope.
2.2 This Agreement between Appcarry and the Customer is either executed upon signature of an
individual order (“Order Form
”) by Appcarry and the Customer
or, if applicable, online via Appcarry’s Self Service portal.
- a) Order Form In order to execute an
agreement by means of an Order Form, the
Customer must send the countersigned Order Form to Appcarry by mail or by email
(“Acceptance”). In addition to any provisions contained
in the Order Form, this
Agreement shall apply.
- b) Self Service (if applicable) In order to
execute an agreement online via
Appcarry’s Self Service portal, the Customer must register itself online with
Appcarry. The registration needs to be confirmed by Appcarry by sending a
confirmation email to the email address that was provided by the Customer. A right
to claim registration
does not exist; Appcarry expressly reserves the right to reject a registration
without stating reasons. The Customer’s Appcarry user account will be activated by
the user by clicking on the activation link. The user account is non-transferable.
The Customer must keep the password secret and protect it against any wrongful use
by unauthorized third parties.
The Customer can order the Services via its user account. Appcarry offers different
packages for its Services. The details for all available packages can be found in
the Customer’s account.
Fee-based packages: To order a fee-based package, the Customer must choose a package
and click on the button “Buy” in order to make a
binding offer to order the Appcarry package.
Appcarry will confirm the receipt of such order via email. However, such
confirmation does not constitute an acceptance of the offer. The agreement between
the Customer and Appcarry will be executed by Adjust’s acceptance of the Customer’s
offer in writing, via email or by making the Adjust software available. Adjust is
not obliged to accept the Customer’s offer.
The Customer can change the chosen package via its user account. If the Customer
changes its package , the monthly fee will be changed accordingly as per beginning
of the next Term. An upgrade of the packages will lead to a new start of the current
2.3 The Customer represents and warrants that all personal information as well as other
relevant contractual data provided by the Customer during the conclusion of this Agreement
is complete and correct. The Customer is obliged to promptly inform Appcarry about any
to this data and/or to update altered data in its user account. In the event of a culpable
breach of this obligation, Appcarry is entitled to suspend the Services upon giving prior
2.4 The Customer is aware that contractual declarations (e.g. confirmation emails,
amendments to this Agreement as well as other notifications) may be sent via email. They are
deemed to have been received when they can be retrieved in the email inbox which was
specified by the user during the registration under normal circumstances.
2.5 If the Customer has chosen a flat/unlimited package, it shall be prohibited from adding
any of its subsidiaries, affiliates, group companies, other acquired companies, etc.
(together referred to as 'Affiliates') to its flat account.
Should an Affiliate want to make use of the Services under this Agreement, the Affiliate
shall be required to execute a
separate Order Form with Appcarry.
3.1 With its Services, Appcarry offers the Customer software that aids in the analysis and
optimization of mobile advertising campaigns and user activities on the internet.
3.2 Appcarry shall render the contractual Services in accordance with the respective service
description in effect at the time this Agreement is executed. Unless expressly specified
otherwise in the respective service description, Appcarry ensures the provision of the
Services with an availability customary within the industry.
3.3 In case of unforeseen events, Appcarry is entitled to suspend the Services for
or repair purposes if this is necessary to ensure the proper operation of the Services.
3.4 Appcarry is entitled to use the assistance of third parties in order to fulfill its
4. CUSTOMER’s RIGHTS AND OBLIGATIONS
4.1 The Customer is entitled to use the Services and the software provided by Appcarry only
for analysis and optimization of mobile advertising campaigns and user activities on the
internet. If the Customer is provided with personal data whilst using the Services, the
Customer may only process and use this data as far as this is legally permissible. The
Customer also assures that the transfer of personal data from Appcarry to the Customer is
legally permissible within the agreed extent.
4.2 Customer must choose the correct settings for use of the Services and software if their
services are directed to children.
4.3 The Customer agrees to keep the passwords and login data provided by Appcarry for access
to the Services confidential and to inform Appcarry immediately as soon as the Customer
becomes aware of unauthorized third parties gaining access to these passwords. If, due to
the Customer’s fault, unauthorized third parties use any Services provided by Appcarry by
using the passwords, the Customer is liable to Appcarry for usage fees and damages. The
Customer must also obtain any necessary authorization to provide Appcarry with login data
containing personal data relating to their staff.
4.4 The Customer shall not make the Services provided by Appcarry available to any third
parties. In addition, the Customer shall not modify, translate, reverse engineer, decompile,
disassemble or otherwise create derivative works from the Appcarry software or
documentation,of the Services or binary-code part of the Service, or otherwise attempt to
discover its underlying code, structure, implementation or algorithms.
4.5 Customer may not perform or attempt to perform any of the following in connection with
• Breaching the security of the Services, identifying, probing or scanning any
security vulnerabilities in the Services,
• Accessing data not intended for Customer;
• Interfering with, circumventing, manipulating, overloading, impairing or
disrupting the operation, or the functionality of the Services;
• Working around any technical limitations in the Service;
• Using any tool to enable features or functionalities that are otherwise disabled,
inaccessible or undocumented in the Service
4.6 The Customer is aware that the product “Audience Builder” does not generate completely
error-free segments in all cases. If the Customer transfers a segment generated this way to
a chosen advertising partner, the Customer carries the risk that this segment corresponds
content-related to the Customer’s expectations. Appcarry is not liable for any defective
segments, regardless of whether the error is within the responsibility of Appcarry or not.
Appcarry without any modifications for its intended use.
4.8 If Appcarry has protected its Services by technical means (e.g. security codes,
firewalls, etc.), the Customer is not allowed to circumvent or remove such security
4.9 The Customer is obliged to protect its own data by taking appropriate measures and by
regularly making backups of its data.
4.10 The Customer must follow Appcarry’s instructions as well as the protocols and
specifications as requested by Appcarry with regard to the telecommunication/data
4.11 During usage of the Services, Customer shall be prohibited from setting up Customer
postbacks to any third party (including, but not limited to networks) with the exception of
Customer postbacks to the Customer itself. Customer shall be solely liable to the fullest
extent for any claims arising out of a violation of the foregoing.
5. FEES AND PAYMENTS
5.1 The fees for the Services that the Customer makes use of are set out in the applicable
Order Form and/or Appcarry’s current valid price list. Unless explicitly stated otherwise,
fees are quoted exclusive of the statutory value-added tax (VAT) applicable at the time. If
the Customer places an order via its Customer account in the Self Service portal, Appcarry
accepts the payment methods as shown in the customer account (e.g. payment by credit cards).
When paying by credit card, the credit card on file will be charged with the amount as
indicated in the agreed order.
5.2 Customers choosing Business-, Business Pro-, Enterprise- or Flat Packages shall pay the
fee for the whole Term (as defined in Section 8.1) in advance within 30 days of receipt of
the invoice (prepayment). If the Customer upgrades to a new package during the Term, the
Customer shall be required to pay the difference between the prepayment of the current
package and the prepayment of the upgraded package within 30 days of the receipt of the
respective invoice. Additional attributions will be invoiced separately.
If the Customer makes a payment via credit card, the fee will be debited with the creation
of the invoice.
5.3 Customers choosing Basic Packages can alternatively conduct monthly payments via credit
5.4 The annual fee may increase by 5% with each renewal Term.
5.5 Invoices will be sent to the Customer via mail or in electronic form, unless expressly
5.6 Customer is responsible for paying all fees applicable to the subscription to the
Services, whether or not Customer actively used, accessed or otherwise benefited from the
Service. In the event of the Customer’s default of payment, Appcarry is allowed to charge
default charges up to EUR 5,00, USD 5,00 or AED 2000 respectively as well as default
interest in accordance with the statutory provisions. Appcarry reserves the right to prove
assert greater damages due to default. If the Customer’s payments are considerably delayed,
Appcarry reserves the right to suspend the provision of any further Services, in particular
the Customer’s access to the Services, at the expense of the Customer until all due payments
have been made. In the event of suspended Services, the Customer is nevertheless obliged to
pay the agreed fees until the point of suspension. In case of a suspension of the Services,
the Term set out in Section 8 of this Agreement or in the Order Form shall be extended for
the respective time of the suspension. After having set the Customer a reasonable deadline
and expiration of that deadline, Appcarry has the right to terminate this Agreement with
immediate effect. In case of returned direct debits or unpaid checks, the Customer shall
reimburse Appcarry for the costs incurred to the extent that the Customer was responsible
the event given rise to these costs. Further claims and rights to which Appcarry may be
entitled in this respect shall remain unaffected.
5.7 Any complaints relating to an invoice must be submitted to Adjust in writing or by email
to firstname.lastname@example.org within four weeks upon receipt of the invoice. If no such complaint
has been made within four weeks upon receipt of invoice, the invoice is deemed to be
accepted. Appcarry will inform the Customer in the invoice about the consequences of failing
to submit a timely complaint.
6. GRANT OF RIGHTS, OWNERSHIP, THIRD PARTY RIGHTS
6.1 Upon execution of this Agreement, Appcarry grants the Customer the non-exclusive,
non-transferable and non-sublicensable right to use the Services during the term of this
Agreement, insofar as this is necessary to use the Services according to the respective
Order Form or, if applicable, the respective order placed via the Self Service portal. The
right of use shall expire once the Customer defaults with any payments due.
6.2 Appcarry shall retain all intellectual property rights as well as any other property
rights in and to the software, the Services as well as other services that are provided
under this Agreement, including, patents, trademarks, source codes, databases, hardware
and/or any other material (e.g. documentations, developments, functions, report templates,
preparatory material, etc.).
6.3 The Customer undertakes to not violate any applicable laws, in particular third party
rights (e.g. copyrights, personality rights, intellectual property rights) or the terms of
this Agreement while using the Services. Insofar, the Customer shall indemnify and hold
Appcarry harmless from any and all third party claims (including but not limited to all
and expenses, incl. reasonable attorney’s fees) that are being asserted against Appcarry
6.4 Unless otherwise agreed between the Parties, Appcarry is entitled to refer to the
collaboration with the Customer and the contractual product and to depict the Customer’s
logo for self-promotional purposes.
7.1 Appcarry shall be responsible that the Services correspond to their intended use.
does not assume any liability for any damages resulting from a usage other than the intended
use. The same applies to any damages resulting from a usage that is not in accordance with
Appcarry’s instructions and recommendations or any other unauthorized usage.
7.2 Upon receipt of the Services, the Customer is obliged to immediately notify Appcarry of
any obvious defects in writing whereas timely dispatch shall suffice to keep the term. The
Customer will provide Appcarry with all documents necessary for the analysis and debugging
attempts and will provide Appcarry with access to the Customer’s servers, if necessary.
7.3 Appcarry does not assume any liability for any disturbances, limitations, interruptions
disruptions of the Services which are caused by circumstances beyond Appcarry’s area of
7.4 Appcarry shall only be liable for any damages which can be attributed to a willful or
gross negligent violation of a duty by Appcarry, its legal representatives or employees, as
result of grave organizational neglect or which are based on defects of a warranted quality
of the Services, pursuant to the statutory provisions. This limitation shall not apply to
any damages resulting from injury of life, body or health.
7.5 Irrespective of the legal grounds, Appcarry shall only be liable for damages that have
been caused by the culpable breach of a cardinal contractual obligation by its legal
representatives or vicarious agents. Liability in this regard shall be limited to the
typical damages that were reasonably foreseeable at the time the contract was concluded,
however to a maximum of AED 10,000.00 per incident of damage and to a maximum of AED
15,000.00 per contract.
7.6 The aforementioned liability provisions shall apply accordingly to Appcarry’s employees
7.7 Any claims for damages arising from a slight negligence by Appcarry shall become
time-barred within one year upon occurrence of the damage. This limitation shall not apply
to any damages resulting from injury of life, body or health. All other claims for damages
shall become time-barred within the statutory period.
7.8 The Customer is obliged to indemnify Appcarry from any third-party claims that may have
arisen as a result of the Customer unlawfully using the data provided by Appcarry. The
indemnity obligation does not apply insofar as the claim is based on a gross negligent or
intentional breach of a duty by Appcarry. In addition, Customer indemnifies Appcarry from
third-party claims arising on first demand arising from Customer's breach of the obligations
set out in 10.3.
7.9 The Appcarry Systems shall be available at least 99.5 % of the annual mean. Appcarry
out that the services may be interrupted or disrupted by circumstances beyond Appcarry’s
of responsibility, including but not limited to acts of third parties that do not act on
Appcarry’s behalf, technical conditions of the internet that Appcarry cannot influence or
majeure. If such circumstances interfere with the availability or functionality of the
Services provided by Appcarry, this has no effect on the contractual conformity of the
Services provided by Appcarry.
7.10 Customer assumes sole and exclusive responsibility to carry out such actions as it
deems appropriate as a result of the Output Data. “Output Data”
means the various reports,
analytics, and other types of information and data that the Service may generate, provide or
make available to Customer. Appcarry has no responsibility or liability, regarding
reliance upon, or use of, the Output Data, Customer’s actions or omissions in connection
with the Output Data, or any consequences resulting therefrom.
7.11 If applicable, Appcarry assumes no guarantee and accepts no liability whatsoever
express nor implied) for the success of the Fraud Prevention Suite with respect to the
prevention of illegitimate installs and purchases.
8. TERM, TERMINATIONS
8.1 The term of this Agreement is determined in the Insertion Orders or, if applicable, the
order form in the Self Service portal.
8.2 In case the Customer has chosen a fee-based package in accordance with Section 2.2 b)
ii) above, the term of this Agreement shall be concluded for twelve (12) consecutive months
and extended for (twelve 12) months on a rolling basis (every twelve months hereinafter
referenced as a “Term
”). Each Party has the right to terminate
a Term by giving notice at
least 90 days prior to the end of each Term. The termination must be made in writing and be
submitted via mail or email (email@example.com).
The right to immediate termination for cause shall remain unaffected. In particular,
Appcarry has the right to immediately terminate this Agreement
if the Customer breaches its obligations pursuant to Section 4.2, 4.3, 4.4, 4.5,
4.7, 4.8, 6.3 or 9 of these Terms and Conditions,
if the Customer is in default of payment and does not settle the outstanding payment
upon receipt of a warning letter with a deadline for payment and expiration of that
deadline to no avail,
if the Customer publishes racist, pornographic, immoral or illegal content on its
website and/or content which glorifies or trivializes violence,
if the Customer is insolvent, subject to insolvency proceedings, insolvency
proceedings have been commenced or the commencement of insolvency proceedings is
dismissed due to lack of assets,
if the Customer violates the provisions of this Agreement and fails to remedy this
violation upon receipt of a written request with an adequate deadline. No such
request is necessary if it has no prospect of success or if the violation is so
serious that Appcarry cannot be reasonably expected to adhere to this Agreement. A
violation is also be deemed serious if the Customer has received notices of warnings
several times because of similar violations.
8.3 Upon termination of this Agreement, the Customer is obliged to delete all copies of the
codes that were provided by Appcarry.
8.4 The notice of termination is excluded prior to the end of the Term. If the Customer
terminates this Agreement disregarding such exclusion, then the Customer shall be subject to
a contractual penalty in the amount of the outstanding payments.
9.1 The parties shall keep all documents, information and data which have been disclosed
during the course of the cooperation strictly confidential during the term of this Agreement
and for 3 years thereafter. The parties undertake to use the same degree of care in
safeguarding the documents, information and data of the other party that is used for its own
confidential information, but a least with the due care of a prudent business man. All such
documents, information and data shall be used exclusively to perform the contractual
9.2 These confidentiality obligations also apply to documents, information and data that
relate to companies affiliated with the parties, other cooperation partners or contractors
and to documents, information and data about customers and sales representatives of the
9.3 These confidentiality obligations do not apply to documents, information and data that
are in the public domain or later become part of the public domain through no breach of
contract by a party, is required to be disclosed by operation of law, court or
administrative order or that has been subsequently exempted from this confidentiality
obligation by an agreement in writing, per fax or via email.
10. DATA PROTECTION
10.1 The Customer is obliged to comply with the applicable data protection law when using
the Services and software and any requirements provided by the Apple App Store and/ or
Google Play Store.
10.2 Pursuant to art. 28 European General Data Protection Regulation (“GDPR”), the
processing of personal data by Adjust on behalf of the Customer requires a written agreement
(“Data Processing Agreement”). The Customer hereby commissions
Appcarry to process personal
data on its behalf by concluding a separate agreement in accordance with the scope and the
conditions of the annex “Contractual Terms and Conditions for Data
10.3 The Customer is responsible to obtain and maintain valid consents from all their
end-users, as may be necessary (if at all) under applicable law (including data protection
or data processing laws and regulations) to process their personal data in the manners and
for the purposes set forth in this Agreement.
10.4 The Customer must choose the correct settings for use of the Services and software if
their services are directed to children. Specifically, the Customer must limit the
collection and processing of personal data regarding children and obtain any necessary
consent where required by law including art. 8 GDPR and the US Children’s Online Privacy
Protection Act (“COPPA").
11. FINAL PROVISIONS
11.1 Place of performance and exclusive place of jurisdiction for all disputes between the
parties shall be DELHI if the Customer is a merchant, a legal entity under public law or a
special fund under public law. DELHI shall also be the exclusive place of jurisdiction if
the Customer does not have a general place of jurisdiction in DELHI, if the Customer, once
it has concluded the contract, moves its domicile out of DELHI or whose domicile is
unknown at the time the lawsuit is filed.
11.2 If any provision of this Agreement or part thereof is invalid or becomes invalid at a
later time, the validity of the remaining provisions shall remain unaffected. The relevant
provision shall be replaced by a provision that as closely as possible reflects the economic
purpose of the invalid provision. The foregoing shall apply analogously if any provision has
inadvertently been omitted.
11.3 Unless expressly agreed otherwise, the legal relationship between Appcarry and the
Customer shall be governed by and construed in accordance with INDIAN law.
11.4 Appcarry has the right within the scope of the contractual purpose to process the data
that was provided in accordance with applicable data protection law, or to commission third
11.5 In case of a merger or acquisition, the Customer is nevertheless obliged to fulfil all
of its obligations under this Agreement. Termination shall only be possible in accordance
with section 8 of this Agreement.