This Terms of Service Agreement (the “SDK Service Agreement”) is an agreement between you (“You” or the “ User”), and 42 matters AG, a company registered in Switzerland under the company number CHE-224.961.109 and having its registered office at Sumatrastrasse 3, 8006 Zurich, Switzerland ("42matters", "We", or "Us"). As part of our commercial services we offer a Profiler Service (the “Service”). In order to use this Service, You must use our Software Development Kit (“ SDK”) to integrate our software application (the “Software”) into Your own mobile application(s) (“App(s )”), subject to the conditions set out herein. In case of any discrepancies between the terms and conditions for the use of the Service set out herein with the terms and conditions You have accepted already when creating an Account on Our Website (www.42matters.com), especially the “Terms of Service for Registered Users of Our Website”, the terms and conditions for the use of the Service set out below shall prevail.
1.1) Following Your subscription to the Service as per Section 1.2 and against payment of the applicable fees, You may (i) use the always latest version of our SDK for the sole purpose of integrating our Software into Your App or into Your own SDK to provide it to publishers of third-party Apps, and (ii) to distribute the integrated Software together with Your App or SDK, and (iii) to receive, subject to the commercial arrangements chosen by You, a per-request based volume of characteristics of the end user of an App where the Software is integrated into (such as potential areas of interest, gender, (other) Apps installed on the end users device, or demographics), (“User Information”). If you have used all the volume purchased, You will have to purchase additional volume to continue to receive such User Information. You understand that We may require You to use the then-current version of our SDK in order to use the Service.
1.2) To use our Service, You must complete the subscription process for the Service on our Website and obtain a user identification reference (“Access Token”). You may then download the SDK via our Website or other third party platforms.
1.3) Unless explicitly agreed or permitted in Section 1.1. or permitted by mandatory applicable law, You shall not, and You agree not to: modify, decompile, reverse engineer, reverse assemble, decipher or otherwise attempt to discover any programming code or any source code used in or with our SDK, rent, lease, loan, sell or publicly display our SDK, or offer services similar to our Services by using our Service, or enable third parties to access and use our Services.
1.4) You are aware that 42matters does not warrant that the use of the Services leads to a comprehensive collection of the requested characteristics and that the provided User Information matches the correct characteristics of the end users. You are also aware that end users may opt-out or apply other measures required by local laws to be implemented in or provided with Your App which will prevent us from collecting User Information and providing such to You.
1.5) We may modify, replace, or discontinue the Services, partially or entirely, at any time and in our sole discretion. All of these changes shall be effective upon their posting on Our Website or by direct communication to you unless otherwise noted.
1.6) You subscribe to the Service by choosing in Your Account one of Our Commercial Service packages and entering your billing details. By activating the “pay” button, You confirm Your subscription to our Service.
2.1) Your subscription runs until either (i) the volume of User Information requests purchased by You is used up, or (ii) the term of the subscription package ended, whatever appears earlier. Volumes not used up within the term of the purchased package shall forfeit.
2.2) The right of either party to terminate for cause remains unaffected. Such right shall apply, in particular:
(i) For You if 42matters fails to meet the availability set out in Section 3 below, or if a material defect of the Service impair the agreed use of the Service and such defect is not remedied within five (5) business days, or if 42matters discontinues or materially modifies the Services to the disadvantage of the User;
(ii) For 42matters if You are in breach of one or more of its obligations.
3.1) 42matters will use reasonable efforts to make the Services available for at least 99% in the average of a calendar quarter. This means that the Services shall be available for all customers during 99% of a calendar quarter (including day- and night time, Sundays and bank holidays). Temporary downtimes for maintenance reasons, downtimes due to force majeure or reasons beyond 42matter’s control, in particular downtimes due to power failure, shall not be taken into consideration when calculating non-availability.
3.2) 42matters will inform Users about the kind, extent and duration of the discontinuation or restriction of the Service as well as about any scheduled downtime via the Website. The notification requirement regarding the beginning of the discontinuation does not arise if the advance notification (i) is objectively not possible under the circumstances involved or (ii) would delay the removal of interruptions already occurred. In case of a discontinuation or restriction of Service, 42matters will use all commercially reasonable efforts to resume or restore the Service as soon as possible.
4.1) You are aware that 42matters does not warrant that the use of the Service is compliant to the requirements of local privacy laws of Your jurisdictions or jurisdictions You choose to distribute the Software and collect End User Information in, and you agree to comply with any such requirements by implementing the necessary measures in your App. As a minimum, You agree:
(i) to implement an opt-out option for the end user, for instance by integrating the possibility of an opt-out from the data collection in the settings of the App or by providing an opt-out link in the terms of service of the App, and
(iii) to obtain all end user consents, clearance and authorizations required by applicable law to use the Service.
4.2) Our SDK supports an opt-out of any of your end user by immediately ceasing to collect the relevant User Information from the end user’s mobile device. 42matters does not warrant that the provision of an opt-out option as supported by the SDK is sufficient to comply with the requirements of Your local laws, and you shall safeguard that all measures are taken by You that the User Information collected via Your App in the jurisdictions where You distribute your App in has been collected and can by processed by 42matters for the purposes of providing the Services to You in full compliance with such laws.
4.3) You will not (and will not allow any third party to) (i) track or collect personally identifiable information of end users or (ii) associate any User Information with any personally identifying information from any source as part of your use (or such third parties' use) of the Service.
4.4) You agree that We have the right to anonymize any End User Information collected by Us in connection with Your use of the Service and to use, distribute and publish such anonymized information for our business purposes.
5.1) THE SDK, SOFTWARE, SERVICES AND MATERIALS ARE PROVIDED “AS IS,” AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, 42MATTERS DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
5.2) In case the Service (including the SDK and Software) shows a material defect, 42matters will use reasonable efforts to remedy such defect within a reasonable term following the receipt of your written notice. In case 42matters fails to rectify the defect within the said term, Your sole right and remedy is to terminate this Agreement as per the above.
5.3) Any liability of 42matters for damages of User, irrespective if based on contract, tort or otherwise, require default, i.e. willful misconduct or gross negligence. Any exceeding liability, i.e. any liability resulting from slight negligence of not requiring any default on 42matter’s side shall be excluded, except for cases where 42matters is in breach of an express guarantee (i.e. made by 42matters using the term “guarantee”), cases of strict product liability or other cases where such liability is mandatory at law.
5.4) 42matter’s overall liability shall be, to the maximum extent permitted by applicable law, limited for all damages occurring during a contract term to the amount paid by User for the said term.
5.5) You warrant that You have obtained any and all consents, authorizations and clearances from end users to allow Us to collect, store, and use User Information as per the terms of this Agreement. You agree to indemnify, defend and hold harmless 42matters, its subsidiaries, affiliates, or any of their respective directors, officers, employees and agents from and against any and all claims, liabilities, penalties, settlements, judgments, fees and expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) arising from (i) Your violation of the terms of this Agreement; (ii) any violation of a third party’s intellectual property rights resulting from the integration or use of the SDK together with your App or SDK; and (iii) any violation or failure by You to comply with all laws and regulations in connection with Your use of the Service, whether or not described herein.
6.1) You agree that You shall keep all other data disclosed or made accessible (no matter in which form though the Services) and any access or login data, software, technical know-how, functionalities of the Service or other confidential information (hereinafter: “Information”) confidential and only use such Information for the intended purpose.
6.2) The provisions set forth in Section 6.1 above shall not apply in case and to the extent that such Information (i) is or becomes available without restriction to the general public by acts not attributable to Users, (ii) was rightfully in User’s possession without limitation on disclosure before disclosure hereunder to the User, (iii) is rightfully disclosed to user by a third party without restrictions on disclosure, (iv) was verifiably independently developed by User, (v) has to be made accessible to public authorities by law or (vi) is allowed to be made accessible by Us.
6.3) You agree that we may use your company name, logos and trade marks in our marketing materials and on Our Website for the sole purpose of referring to You as Our customer.
The formation, interpretation and performance of this Agreement and any disputes arising out of it shall be governed by the substantive and procedural laws of the canton of Zürich, Switzerland and, to the extent applicable, the laws of Switzerland, without regard to its rules on conflicts of law. The exclusive jurisdiction and venue for action related to this Agreement shall be the courts located in Zurich, Switzerland, and you hereby submit to the personal jurisdiction of such courts. Notwithstanding the forgoing, 42matters may also assert claims at the court at the seat of User. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
8.1) If any portion of this Agreement is found to be unenforceable, the remaining portion will remain in full force and effect.
8.2) If 42matters fails to enforce any of this Agreement, it will not be considered a waiver.
8.3) Any amendment to or waiver of this Agreement must be made in writing and signed by Us.
8.4) All of our rights and obligations under this Agreement are freely assignable by 42matters in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.
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