X Enhanced Features Agreement

Last Updated: January 18, 2017

PLEASE READ THIS AGREEMENT CAREFULLY. BY NOT OPTING OUT OF THE X ENHANCED FEATURES, WHICH MAY BE DONE BY DISABLING THE ENHANCED FEATURES IN YOUR ANSWERS SETTINGS, OR BY OTHERWISE ACCESSING OR USING THE X ENHANCED FEATURES OR X ENHANCED FEATURES DATA, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, YOU SHALL OPT OUT OF THE X ENHANCED FEATURES AND YOU SHALL NOT OTHERWISE ACCESS OR USE THE X ENHANCED FEATURES OR X ENHANCED FEATURES DATA.

This X Enhanced Features Agreement (“Agreement”) is entered into by X, Inc., on behalf of itself and its worldwide affiliates (“X”) and you (“Developer” or “You”) and governs access and use of the X Enhanced Features (defined below) provided by X. If You are accessing or using the X Enhanced Features on behalf of a company or other legal entity, You represent and warrant that You are an authorized representative of that entity and have the authority to bind such entity to this Agreement, in which case the terms “Developer” and “You” shall refer to such entity. You and X hereby agree as follows:

1. Definitions.

In addition to terms defined elsewhere in this Agreement, the terms set forth immediately below have the following meanings.

“X Enhanced Features” means both (1) Audience Insights, which provides Developer with aggregated demographic and interest information about the End Users of such Developer’s Answers Kit Applications that is derived from, among other sources, the applications and services of X, Inc. and provided to Google for the sole purpose of reporting such information to Developer (“Audience Insights”), and X Mobile App Conversion Tracking, as described at https://docs.fabric.io/apple/answers/mobile-app-conversion-tracking.html, which provides Developer with conversion tracking for measuring the effectiveness of advertising campaigns run on, by, or through X, Inc. or its worldwide affiliates (“MACT”).

“Answers Kit” means the software development kit made available by Google for Applications that enables access to Answers Kit Services, including any software, data, code, and other materials included therein, and any updates or modifications thereto.

“Answers Kit Application” means any Application into which Answers Kit has been integrated.

“Answers Kit Services” means any features or functionality made available by Google to an Answers Kit Application, including any analytics, conversion tracking, or other functionality.

“Application” means any mobile application of Developer into which Answers Kit may be integrated.

“Developer Data” means any information, data, and other content, including End User Data, received by X from You in connection with Developer’s authorized use of the Answers Kit Services that is associated with a particular Developer, Answers Kit Application, end user, mobile device identifier, vendor identifier, or full IP address, which may include the Answers Kit version number used by an Answers Kit Application, the bundle identifier and build version number of an Answers Kit Application, vendor identifiers (iOS), whether an Answers Kit Application links AdSupport.framework (iOS), unique installation identifiers for each installation of each Answers Kit Application, timestamps, session start and stop events, installation events, custom application events defined by Developer and the associated attributes, application events and the associated attributes, app lifecycle events (iOS), or app activity events (Android).

“End User” means any end user of any Answers Kit Application.

“End User Data” means any data received by X from You via X Enhanced Features associated with a particular end user, which may include mobile device identifier, or full IP address, including the name and app store identifier of such Answers Kit Application, the bundle identifier and build version of that application, unique mobile device identifiers (e.g. IDFA (iOS), Advertising ID (Android), and Android ID (Android)) and the associated interest­based advertising opt­out preference as applicable, full IP addresses, timestamps, device model name, device operating system name and version number, the language and country settings of the device (iOS), the number of CPU cores on the device (iOS), whether a device is jailbroken (iOS) or rooted (Android), custom application events defined by Developer and the associated attributes, application events (e.g. Install, Purchase, Add to Cart, Start Checkout, Content View, Search, Share, Rated Content, Sign Up, Log In, Invite, Level Start, and Level End) and the associated attributes, app lifecycle events (iOS), or app activity events (Android).

“Google” means Google Inc. and its affiliates who provide the Answers Kit Services.

“Sensitive Information” means information about (a) alleged or actual commission of a crime, (b) health, (c) negative financial status or condition, (d) political affiliation or beliefs, (e) racial or ethnic origin, (f) religious or philosophical affiliation or beliefs, (g) sex life, and (h) trade union membership.

“Term” means the term of this Agreement, which commences on the date upon which You enter into this Agreement (or the date on which this Agreement becomes effective, if later) and continues until terminated by You or X.

2. Licenses; Restrictions.

2.1. License Grant to Developer Data. To enable the X Enhanced Features for such Developer Data, Developer shall provide the Developer Data to X. Developer may direct Google to provide the Developer Data to X and hereby grants X a license-fee free, royalty-free, fully paid up, non­exclusive, perpetual and irrevocable, worldwide right and license to access, copy, distribute, process, use, and to make, use and otherwise dispose of systems and processes using, Developer Data solely to (a) provide the X Enhanced Features, (b) improve and maintain any products and services offered by X, including without limitation personalizing those products and services for individual users or devices and delivering, targeting, and measuring the effectiveness of advertisements; and (c) improve and maintain X’s systems and for X’s internal business purposes. As between Developer and X, Developer owns all right, title, and interest in and to the Developer Data.

2.2. License Grant to X Enhanced Features. Subject to Developer’s compliance with the terms and conditions of this Agreement (as a condition to the grants below) and to the extent that You provide X with Developer Data, X will provide and hereby grants Developer, and Developer accepts, a personal, nonexclusive, non­transferable, non­sublicensable, and revocable license, during the Term, to use the X Enhanced Features and the corresponding data made available via the X Enhanced Features, including any Audience Insights data, MACT data, and data that Developer or any of Developer’s affiliates, clients, partners, or service providers collects, infers, derives, or obtains from or in connection with Developer’s use of the X Enhanced Features (collectively “X Enhanced Features Data”) for, in an aggregated and anonymized format only, (a) obtaining insights about groups of End Users of Developer’s Answers Kit Application and (b) optimizing the performance of Developer’s applicable X advertising campaigns during the term of such applicable campaigns. Developer shall not use X Enhanced Features Data for any other purpose, including (1) creating or appending end user profiles, including those associated with any mobile device identifier or other unique identifier, connected to any end user, computer, browser, or device, (2) repurposing, retargeting, or redirecting any End Users, browsers, or devices, or (3) co­mingling X Enhanced Features Data with other data or across other non­X advertising campaigns. Developer represents and warrants that it shall not, whether directly or indirectly, link X Enhanced Features Data to, or store X Enhanced Features Data in any manner which is linkable to, any personally identifiable information of any person or household.

2.3. Restrictions. Except as expressly permitted herein, Developer shall not directly or indirectly: (a) reverse engineer, decompile, decipher, translate, disassemble, create derivative works of or otherwise attempt to access source code of any X Enhanced Features or X Enhanced Features Data; (b) publish, rent, lease, lend, sell, sublicense, distribute, transfer, disclose, or otherwise make any X Enhanced Features or X Enhanced Features Data available to any third party; (c) provide use of the X Enhanced Features on a service bureau, rental or managed services basis or permit other individuals or entities to create Internet “links” to the X Enhanced Features or “frame” or “mirror” the X Enhanced Features on any other server, or wireless or Internet-based device; (d) remove or alter any proprietary notices or labels on or in any X Enhanced Features or X Enhanced Features Data; (g) use any X Enhanced Features or X Enhanced Features Data in connection with the development or transmission of any virus, worms or malicious code; (h) use any X Enhanced Features or X Enhanced Features Data to infringe the rights of X or any third party, or in any way that does not comply with all applicable laws; (i) use any X Enhanced Features or X Enhanced Features Data (including to create any Application) in any way that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of X or any third party, including any mobile communications carrier; or (j) enable the X Enhanced Features for any Applications that collect Sensitive Information, including pre­defined events and custom events, or that otherwise may reveal, cover, encompass, or relate to Sensitive Information.

3. Updates.

The functionality offered by X as part of the X Enhanced Features is subject to change at any time in X’s sole discretion, except that if X discontinues the X Enhanced Features, then X will have no license under this Agreement to Developer Data provided by Developer to X that is not used to deliver X Enhanced Features to Developer. Except as otherwise stated in this Agreement, X reserves the right to discontinue or suspend (permanently or temporarily) the X Enhanced Features or any features or portions thereof without prior notice. X will not be liable for any suspension or discontinuance of the X Enhanced Features or any part thereof. The X Enhanced Features can be disabled by Developer at any time as described in Developer’s agreement with Google.

4. Developer Data.

4.1. Responsibility for Developer Data. Developer acknowledges and agrees that X does not and will not assume any responsibility or liability for, or undertake to verify, the accuracy, completeness, or legality of any Developer Data. X shall have no obligation to store, delete, or return any Developer Data. Developer bears all responsibility and liability for the legality, accuracy, and completeness of the Developer Data as well as X’s access, possession, distribution, and use thereof, as permitted under this Agreement.

4.2. Disclosure of Developer Data. Except as expressly set forth in this Agreement, X shall not disclose Developer Data to any third party without Your consent; provided, however, that X shall have the right to disclose any such information (a) if X believes that such disclosure is reasonably necessary to comply with any applicable law, regulation, legal process, or governmental request, (b) to any third­party service provider that performs services on behalf of X subject to confidentiality obligations consistent with this Agreement, or (c) if it is or becomes available to the public without breach of this Agreement by X.

4.3. Consent to Data Processing and Transfer. Developer consents to the collection, transfer, manipulation, storage, disclosure and other uses of information, including without limitation Developer Data, as described in this Agreement. Irrespective of which country Developer is based in, Developer authorizes X (and X, as applicable) to use its information (including without limitation Developer Data) in, and as a result to transfer it to and store it in, the United States and any other country where X (and X, as applicable) operates. Privacy and data protection laws in some of these countries may vary from the laws in the country where Developer is based.

5. End Users Notice & Consent.

Developer shall maintain and comply with a privacy policy that (a) is conspicuously posted from all Answers Kit Applications and other services from which Developer Data and End User Data are collected and/or made available to X (whether through the Answers Kit Technology or otherwise); (b) complies with all applicable laws and regulations; (c) that fully and accurately discloses to End Users what information is collected about them, including without limitation End User Data, and how any of such information is used and shared by Developer; (d) that fully and accurately discloses to End Users that third parties such as X may collect and use End User Data to improve their products and services and for analytics purposes; (e) fully and accurately discloses to End Users that third parties such as X collect and use information about End Users’ actions, including browsing and shopping activities, in such Answers Kit Applications for conversion tracking, interest based advertising, and personalizing other products and services for individual users or devices; and (f) provides legally sufficient instructions to End Users on how they can opt out of interest based advertising, including by using their device settings: the "Limit Ad Tracking" setting on iOS and the "Opt out of interest based ads" setting on Android. For Developer’s users in the European Union, Developer shall provide such users with clear notice of, and obtain such users’ consent to, the transfer, storage, and use of their information in the United States and any other country where X or any third-party service providers acting on its behalf, operates, and shall further notify such users that the privacy and data protection laws in some of these countries may vary from the laws in the country where such users live.

6. Representations and Warranties.

6.1. Representations and Warranties. Each party represents and warrants that it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement, and that the performance of such obligations and duties does not conflict with or result in a breach of any other agreement of such party, or any judgment, order, or decree by which such party is bound. Developer further represents and warrants that it (a) owns all right, title, and interest, or possesses sufficient license rights, in and to the Developer Data and has obtained and shall maintain all rights, approvals, and consents as may be necessary to grant the rights and licenses under this Agreement; (b) it has provided to End Users of its Answers Kit Applications legally sufficient notice, and has obtained legally sufficient informed consent from such End Users, regarding the use of Developer Data licensed under this Agreement, including without limitation as set forth in Section 5; (c) to the extent Developer controls the content or format of Developer Data, that Developer Data does not contain or reveal any personally identifiable information of any person or household; (d) its use of the X Enhanced Features and X Enhanced Features Data does not and will not infringe any intellectual property or other proprietary right of any third party or violate any right of or duty owed to any third party (including contract rights, privacy rights, and publicity rights); (e) its use of the X Enhanced Features and X Enhanced Features Data does not and will not violate any applicable rules, regulations, or foreign, federal, state or local laws; and (f) it shall not enable X Enhanced Features for any Application (y) with End Users who Developer has actual knowledge are under the age of 13, or (z) that may be deemed to be a “Web site or online service directed to children” as defined under the Children’s Online Privacy Protection Act of 1998 and the regulations promulgated thereunder.

6.2 Disclaimers

EXCEPT AS EXPRESSLY STATED IN SECTION 6.1, EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON­INFRINGEMENT, MERCHANTABILITY, TITLE, OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. THE X ENHANCED FEATURES AND X ENHANCED FEATURES DATA ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, X AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, RELATED COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, AND LICENSORS (COLLECTIVELY, THE “X ENTITIES”) MAKE NO REPRESENTATION OR WARRANTY (A) THAT THE X ENHANCED FEATURES AND X ENHANCED FEATURES DATA OR RESULTS THEREFROM WILL MEET DEVELOPER’S REQUIREMENTS OR BE UNINTERRUPTED, ERROR­FREE, BUG­FREE, OR VIRUS­FREE, (B) REGARDING THE RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE X ENHANCED FEATURES AND X ENHANCED FEATURES DATA, OR (C) THAT ANY ERRORS IN THE X ENHANCED FEATURES AND X ENHANCED FEATURES DATA CAN OR WILL BE CORRECTED.

7. Indemnification

7.1. Claims Against X. Developer will defend X from all third party claims, actions, suits, or proceedings, whether actual or alleged (collectively, “X Claims”), and will indemnify and hold harmless X from any and all losses, liabilities, damages, costs, and expenses (including reasonable attorney’s fees) resulting from such Claims, to the extent arising out of Developer’s (a) access or use of the X Enhanced Features or X Enhanced Features Data; (b) actual or alleged infringement, misappropriation, or violation of the rights of any third party, including without limitation any intellectual property rights, privacy rights, or publicity rights; or (c) breach of any term of this Agreement, including without limitation Developer’s representations and warranties set forth herein. Developer is solely responsible for defending any such X Claims, subject to X’s right to participate with counsel of its own choosing, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from such Claims, provided that Developer will not agree to any settlement related to any such Claims without X’s prior express written consent regardless of whether or not such settlement releases X from any obligation or liability. If Developer uses the X Enhanced Features or X Enhanced Features Data in an official capacity as an employee or representative of a United States federal, state or local government entity and is legally unable to accept this indemnification provision, then it does not apply to such entity, but only to the extent as required by applicable law.

7.2. Claims Against Developer. X will defend claims, suits, or actions brought against Developer by a third party solely to the extent that such claims, suits, or actions arise from an allegation that the X Enhanced Features or X Enhanced Features Data, when used as expressly permitted by this Agreement, infringes the intellectual property rights of such third party (“Developer Claim”). Notwithstanding the foregoing, X will have no obligation under this Section or otherwise with respect to any infringement claim based upon: (a) any use of the X Enhanced Features or X Enhanced Features Data not expressly permitted under this Agreement; (b) any use of the X Enhanced Features or X Enhanced Features Data in combination with products, equipment, software, or data not made available by X if such infringement would have been avoided without the combination with such other products, equipment, software, or data; (c) any modification of the X Enhanced Features or X Enhanced Features Data by any person other than X or its authorized agents or subcontractors; or (d) any claim not clearly based on the X Enhanced Features or X Enhanced Features Data itself. This Section states X’s entire liability and Developer’s sole and exclusive remedy for all third party claims.

7.3 Procedure. The foregoing obligations are conditioned on the party seeking indemnification: (a) promptly notifying the other party in writing of such claim; (b) giving the other party sole control of the defense thereof and any related settlement negotiations except as otherwise provided herein; and (c) cooperating and, at other party’s request and expense, assisting in such defense. Neither party may make any public announcement of any claim, defense or settlement without the other party’s prior written approval. The indemnifying party may not settle, compromise or resolve a claim without the consent of the indemnified party, if such settlement, compromise or resolution (x) causes or requires an admission or finding of guilt against the indemnified party, (y) imposes any monetary damages against the indemnified party, or (z) does not fully release the indemnified party from liability with respect to the claim.

8. Limitation of Liability

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FOR ANY DAMAGES ASSOCIATED WITH LOSS OF USE, BUSINESS, PROFITS, OR GOODWILL, OR FOR INTERRUPTION, LOSS, OR CORRUPTION OF DATA OR NETWORKS.

IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED FIFTY ($50.00) DOLLARS (USD).

THE FOREGOING LIMITATIONS SHALL NOT APPLY TO BREACHES OF CONFIDENTIALITY OBLIGATIONS OR FOR MISAPPROPRIATION OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO ANY AND ALL CLAIMS, REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to You. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW.

9. Termination

Either party may terminate this Agreement with or without cause immediately upon providing notice to the other party. Upon any termination of this Agreement, (a) Developer must discontinue accessing and using the X Enhanced Features and the X Enhanced Features Data; (b) the provisions in Sections 2.1 (License Grant to Developer Data), 4 (Developer Data), 5 (End Users Notice and Consent), 6.2 (Disclaimers), 7 (Indemnification), 8 (Limitation of Liability), this Section 9 (Termination) and Section 10 (Miscellaneous) shall survive; (c) all obligations or liabilities that accrued prior to the effective date of termination and all remedies for breach of this Agreement shall survive; and (d) all other rights, obligations, and licenses of the parties under this Agreement shall terminate.

10. Miscellaneous

This Agreement constitutes the entire agreement between you and X with respect to the subject matter hereof (excluding any products or services for which you have a separate agreement with X that is explicitly in addition or in place of this Agreement) and supersedes and merges all prior proposals, understandings and contemporaneous communications. You may not assign any of the rights or obligations granted hereunder, whether voluntarily or by operation of law, contract, merger (whether Developer is the surviving or disappearing entity), acquisition or sale of stock or assets, consolidation, dissolution, through government action or otherwise, and any attempted assignment in violation of this paragraph is null and void. You agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA), shall apply to this Agreement, regardless of the states in which you, Company or X do business or are incorporated. You agree that money damages would be an inadequate remedy for X in the event of a breach or threatened breach of the provisions in this Agreement protecting X’s intellectual property, and that in the event of such a breach or threat, X, in addition to any other remedies to which it is entitled, is entitled to such preliminary or injunctive relief (including an order prohibiting Developer from taking actions in breach of such provisions), without the need for posting bond, and specific performance as may be appropriate to preserve all of X’s rights. This Agreement do not create or imply any partnership, agency or joint venture. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflicts of law rules or principles. Developer and X shall attempt to resolve 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, through informal discussions or by mediation. If Developer and X are unable to promptly resolve a dispute informally or by mediation, the party alleging a material breach may initiate arbitration by promptly providing the other party with written notice of its intent to arbitrate. Arbitration of all disputes shall take place in San Francisco, CA before one mutually agreed upon arbiter. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude X from seeking equitable or similar relief from any court of competent jurisdiction to prevent or restrain any breach or threatened breach of this Agreement by Developer. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained. No waiver by X of any covenant or right under this Agreement will be effective unless memorialized in a writing duly authorized by X. If any part of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. X may amend this Agreement from time to time, by posting updated terms and conditions to this location, and Your continued use of the X Enhanced Features or X Enhanced Features Data after such posting will signify your acceptance of such updated terms and conditions.

Any notice or communication hereunder to X shall be sent to X Inc. c/o X, Inc. 1355 Market Street, Suite 900, San Francisco, CA 94103, Attn: Legal Department, or at such other address as is designated in a subsequent notice. All notices shall be in English.