01Nov. 2020

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 apply 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 Term.

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 changes 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 notice.
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. SERVICES
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 maintenance 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 contractual obligations.
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 the Services:
  • • 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.
4.7 The Customer is obliged to use the HTML, JavaScript or other program code provided by 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 measures.
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 transmission.
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, all 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 card.
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 agreed otherwise.
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 and 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 for 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 invoice@appcarry.com 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 costs and expenses, incl. reasonable attorney’s fees) that are being asserted against Appcarry upon first request.
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. LIABILITY
7.1 Appcarry shall be responsible that the Services correspond to their intended use. Appcarry 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 or disruptions of the Services which are caused by circumstances beyond Appcarry’s area of responsibility.
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 a 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 and agents.
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 any 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 points out that the services may be interrupted or disrupted by circumstances beyond Appcarry’s area 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 force 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 Customer’s 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 (neither 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 (legal@appcarry.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. CONFIDENTIALITY
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 services.
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 parties.
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 Processing”.
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 parties.
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.