Singular, Inc. (“Singular” or “us”, “our”, “we”) provides command and control services (“Core Analytics Service”) and measurement and attribution services (“Attribution Service”) for mobile advertising (collectively, the “Services”). These Terms of Service (these “Terms”) together with the executed Service Agreement which Singular has provided to you (the “Service Agreement”), govern your access and use of the Services. “You” or “Company” means the entity that uses the Services. Please read these Terms carefully. These Terms govern your use of the Services. By accessing or using the Services or making any payment in respect of the Service Agreement, you signify your assent to these Terms.
Definitions. As used in this Agreement, the following terms shall have the meanings set forth below:
“Company Application” means a mobile software application that (i) is written to run on the iOS or Android operating system and (ii) accesses the Attribution Service via the SDK.
“Dashboard” means the user interface for the Services, as described in the Documentation.
“Documentation” means Singular’s published documentation for the SDK and the Services located https://singular.zendesk.com/hc/en-us.
“EULA” means an end-user license agreement (i) that disclaims all warranties and liabilities on behalf of Singular, (ii) that prohibits all decompilation and other reverse engineering of the subject software, (iii) to which Singular is a third-party beneficiary and (iv) that meets the Apple Store’s then-current requirements for end-user licenses.
“Sample Code” means software source code included in the SDK that is plainly marked to indicate that it is authorized for inclusion Company Applications.
“SDK” means all of the following: (a) the Singular iOS software development kit that is distributed as a zip file containing headers and a library file at http://docs.singulariossdk.apiary.io/#/; (b) the Singular Android software development kit that is distributed as a zip file containing a JAR file at http://docs.singularandroidsdk.apiary.io//; (c) the Singular Unity software development kit (iOS and Android) that is distributed as a Unity package file at http://docs.singularsunitysdk.apiary.io/#/; and (d) any other Singular software development kit that may be distributed at https://singular.zendesk.com/hc/en-us
“User Data” means IDFAs, Android IDs, Google Advertising IDs or equivalents, as well as non-personally identifiable information regarding the behavior and usage patterns of end users of Company Applications, that Company may supply to Singular, including via the Dashboard or SDK.
Services. Subject to the terms and conditions and license grant hereof, Singular shall allow you to access and use the Services during the Term. Company shall use the Services only in respect of its own advertising and promotions, and shall not use the Services to provide similar services to any third party.
Registration. In order to use the Services, Company will be required to register with Singular. Company must provide all information as requested by Singular in the registration process, and Company represents and warrants that all such information shall be accurate and complete. Company shall keep such information up-to-date. Company shall immediately notify Singular if there is a security breach of its account. Company is responsible for all uses of its account, including by any unauthorized users.
Restrictions. Except as set forth expressly herein, Company shall not, and shall not permit any third party, to (a) reverse engineer or attempt to find the underlying code of, the Services; (b) modify the Services, or insert any code or product, or manipulate the Services or their presentation in any way; (c) impose an excess load or burden on the Services, (d) circumvent any security or access control measures of the Services (e) license or distribute the Services to any third party, or use the Services as part of a service bureau operation or to provide services on behalf of or for the benefit of any third party, including by way of using any portion of the SDK to provide, or to assist in or further the provision of, any data processing, outsourcing, time-sharing or service-bureau services, or any other services for the benefit of any third party; (f) use, copy, modify, or distribute the SDK, except as expressly licensed pursuant to Section 6(a), or authorize, permit or enable any third party to use, copy, modify, or distribute the SDK; (g) remove, alter, add to, or obscure any intellectual property or other notice included in the SDK; (h) permit any lien, security interest, or other encumbrance to the attach to the SDK or any portion thereof; (i) use any portion of the Services for any illegal or unlawful purpose or activity or in violation of any third-party right . To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, Company shall inform Singular in writing in each instance prior to engaging in the activities set forth above.
Intellectual Property. As between the parties, Singular shall have all right, title and interest in the Services, and all software that provides the Services. Singular does not request feedback regarding the Services. Notwithstanding the foregoing, if Company provides Singular with any feedback regarding the Services, Singular and its affiliates may use all such feedback without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback.
Attribution Service License. Your use of the Attribution Service shall be subject to the following license:
License Grant. Subject to Company’s timely payment of fees for the selected Services and to Company’s performance of and compliance with its obligations in Section 4 (Restrictions) and Article 9 (Confidentiality), Singular hereby grants to Company a nonexclusive, worldwide, nontransferable, nonsublicensable license, during the Term, under Singular’s rights in and to the SDK, solely for Company’s internal business purposes:
To use and copy the SDK in source code form, and to modify the Sample Code, as necessary to create Company Applications;
To compile Company Applications to create object code versions thereof;
To submit Company Applications to the Apple Store and Google Play store for approval; and
To distribute, directly and via the Apple Store and Google Play store, object code versions of Company Applications pursuant to EULAs.
SDK Ownership. The SDK is licensed, not sold, to Company. Company acknowledges and agrees that, as between the Parties, Singular is the sole and exclusive owner of all right, title and interest in and to the SDK and the Service. No rights or licenses, including any implied rights or licenses, are granted by Singular other than as expressly set forth in this Agreement, and Singular reserves all rights not expressly granted. Company shall immediately notify Singular in writing of any known unauthorized use of the SDK or the Service. Company shall cooperate with Singular’s reasonable efforts to protect its intellectual property rights in and to the SDK and the Service.
Software Development Contractors. Company may use third-party independent contractors (“Contractors”) to create Company Applications in accordance herewith, provided that (a) Company first notifies Singular in writing of the name, address, and other available contact information for the Contractor, together with a description of the contemplated applicable services that the Contractor will provide, and promptly notifies Singular of any changes in any of the foregoing and (b) such use is pursuant to a written, binding agreement (the “Contractor Agreement”) between Contractor and Company that (i) is at least as protective of Singular’s rights in the SDK and Singular’s Confidential Information as this Agreement; (ii) contains Contractor’s acknowledgement and agreement that Singular is the exclusive owner of the SDK and Singular’s Confidential Information; (iii) designates Singular as a third-party beneficiary thereof; and (iv) prohibits any further sub-contracting by Contractor and prohibits Contractor from authorizing or permitting any third party to access or use the SDK or Singular’s Confidential Information. Company shall ensure that each Contractor fully complies with its Contractor Agreement, and Company shall be liable to Singular for any breach by Contractor thereof.
Singular Trademarks. The license granted herein does not include any right to, and Company shall not, make any use whatsoever of any Singular trademark, servicemark, trade dress or other designator of source or origin.
Payment. Company shall make payment to Singular pursuant to the terms and conditions of the Service Agreement. Company must add applicable taxes (including VAT) and other government charges to such amounts as required by law. All amounts payable hereunder are exclusive of all applicable taxes and government charges, and Company shall make payment to Singular without deduction for and free and clear of any such amounts. Unless set forth otherwise on the Service Agreement, amounts are due and payable within 30 days of receipt of the applicable invoice. Late payments shall bear interest at the rate of 5% per annum.
Protected Health Information. Company shall not deliver, disclose or make available to Singular, including via the Dashboard or the SDK, any Protected Health Information (as defined under the Health Insurance Portability and Accountability Act of 1996 (as amended).
Restricted Use. Company shall not use Singular’s Confidential Information except as expressly permitted herein. Singular shall not use the User Data for the benefit of any third party.
Services Levels, Support. The Service Agreement describes Singular’s support and service commitment, which Singular shall make reasonable commercial efforts to satisfy. Notwithstanding such commitment, Singular does not guarantee the Services will be operable at all times or during any down time (a) caused by outages to any public Internet backbones, networks or servers, (b) caused by any failures of Company’s software, equipment, systems or local access services, or (c) for previously scheduled maintenance.
Premium Consultative Services. Company may, upon written request to Singular, receive consulting services related to the use of the Services at Singular’s then-current rates and on Singular’s then-current terms and conditions.
Representations and Warranties; Disclaimer. Company represents and warrants that (a) it has sufficient authority to enter into this agreement and that is has not entered into any other agreement, obligation or restriction which would prohibit the provision of the Services to Company or the access of Company’s data or other advertising Services by Singular. Company will promptly inform Singular if it has reason to believe that the former representations are no longer true. Company accepts the Services and any reports or analytics “as is”. Singular makes no warranties or representations regarding the services, reports or analytics and disclaims all implied and statutory warranties, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose or non-infringement. No other document or oral statements made by Singular or its representatives shall be deemed to provide any warranty or representation unless expressly set forth herein. Singular makes no warranties regarding the accuracy of the analytics. Any actions taken by the company based on the analytics are at company’s sole risk.
LIMITATION OF LIABILITY. IN NO EVENT SHALL SINGULAR (OR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR CONSULTANTS) HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, DIRECT, SPECIAL OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE SERVICES OR THE ARRANGEMENTS CONTEMPLATED HEREIN, INCLUDING IN RESPECT OF LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR LOST DATA, WHETHER LIABILITY ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. IN NO EVENT SHALL THE LIABILITY OF SINGULAR (OR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR CONSULTANTS) FOR THE PROVISION OF THE SERVICES OR UNDER ANY PROVISION OF THIS AGREEMENT EXCEED THE AMOUNT OF PAYMENT RECEIVED BY SINGULAR FROM COMPANY IN THE 12 MONTHS PRECEDING THE APPLICABLE CLAIM, WHETHER LIABILITY ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. Company understands that Singular is not a data storage service. Company must make backups of any data provided to Singular, and Singular shall have no liability for any lost or corrupted data.
Company Application Indemnity. Company shall defend, indemnify and hold harmless Singular, its employees, officers and directors from and against all cost, loss, liability, damage and expense from third-party claims arising out of or related to any Company Application, except to the extent that such claims arise out of any material breach by Singular of the warranties set forth in Section 12.
Term. The term of these Terms (the “Term”) shall commence on the Effective Date and shall continue for the period set forth on the Service Agreement unless terminated in accordance with these Terms. If the Service Agreement provides for an initial “opt-out period”, Company may terminate these Terms prior to the conclusion of such opt-out period. Otherwise, Company may not terminate these Terms during the Term. Singular may terminate these Terms with written notice if it has reason to believe that Company is in breach of any provision of these Terms. Upon any termination or expiration of these Terms, Singular will cease providing the Services. In the event of any termination (a) Company will not be entitled to any refunds of any fees, and (b) any outstanding balance for Services rendered through the date of termination will be immediately due and payable in full. Sections 3-14 of these Terms shall survive any termination thereof.
Force Majeure. Each party shall be excused from performance hereunder, except with regard to payment obligations, to the extent that the failure to perform such obligation is due to a Force Majeure Event. A “Force Majeure Event” means any circumstance not within the reasonable control of the party affected, but only if and to the extent that (i) such circumstance, despite the exercise of reasonable diligence cannot be prevented, avoided or removed by such party, and (ii) such circumstance materially and adversely affects the ability of the party to perform its obligations under this Agreement. With respect to Singular, the cessation of any third party data provider in providing data shall be deemed a Force Majeure Event. If a Force Majeure Event continues for more than 30 days, either party may terminate this Agreement upon written notice.