- DEFINITIONS
1.1 “Advertiser” means the person or entity identified as “Advertiser” or “Partner” in the associated Insertion Order.
1.2 “App” means a mobile application released by Advertiser and made available to Now.gg, Inc., (formerly known as Bluestack Systems, Inc.)(“BlueStacks”).
1.3 “App Player” means BlueStacks’ proprietary software product that enables Android mobile applications to run on Microsoft Windows OS-based systems, and Apple Mac OS-based systems.
1.4 “Creative” means materials of any type used under this agreement and applicable Insertion Order, including, but not limited to, buttons, banners, text-links, pop-ups, and text, web link, and/or graphic file or file of such other format to be displayed for the purpose of digital marketing.
1.5 “Derivatives” of any subject matter include, without limitation, all derivatives, enhancements, extensions, improvements, modifications, new products and the like, that to any extent incorporate or are based on or related to any portion of that subject matter.
1.6 “Geo” refers to the countries or geographical areas set forth in an applicable Insertion Order.
1.7 “Impression” means each occurrence of the App or Creative being displayed by BlueStacks to an end-user.
1.8 “Insertion Order” means an order for BlueStacks to promote Advertiser’s App.
1.9 “Install” or “Installation” means a download, successful installation and opening of an App by a user located worldwide occurring inside the App Player or BlueStacks’ affiliated sites or platforms.
1.10 “Intellectual Property Rights” means all present and future patent, copyright, trademark, service mark, moral, publicity, privacy, and trade secret rights, contract rights, and other intellectual property, proprietary or similar rights anywhere in the world.
1.11 “Third Party Attribution Provider” refers to a service provided by a third party (such as Adjust, AppsFlyer, Kochava, TUNE, Singular, etc.), which generate tracking links, post-backs and other tools to track and measure in-app events, including, but not limited to, App Installation, IAP revenue, and level progress data.
- ADVERTISER OBLIGATIONS
Implementation and Integrations. Advertiser shall, at its own cost, register and maintain an account with a Third-Party Attribution Provider of its choice. Advertiser will grant BlueStacks rights and license to (A) access and use (i) postbacks, tracking links and provider dashboards as BlueStacks needed and (ii) third party attribution provider feeding user-level data (including, without limitation, advertising identifiers, device IDs, installation and purchase events and other user behavior data as required); (B) integrate such data back to BlueStacks’ server; and (C) to use such data to perform its obligations or exercise its rights hereunder.
- BLUESTACKS OBLIGATIONS
3.1 Promotional Campaigns. As set forth on the applicable Insertion Order, BlueStacks will conduct one or more of the following promotions, subject to Advertiser’s payment of the applicable fees set forth on the applicable Insertion Order.
3.1.1 CPC. BlueStacks will conduct promotional campaigns at its election to acquire new Installs of Advertiser’s App in the geo(s) listed in the Insertion Order. Such promotional campaigns may include advertising the App on BlueStacks.com, BlueStacks App Player and/or affiliated third party sites or platforms. Additionally, BlueStacks, may advertise the App’s availability on BlueStacks via various social media platforms and/or search engines.
3.1.2 CPI. BlueStacks will conduct promotional campaigns at its election to acquire new Installs of Advertiser’s App in the geo(s) listed in the Insertion Order. Such promotional campaigns may include advertising the App on BlueStacks.com, BlueStacks App Player and/or affiliated third party sites or platforms. Additionally, BlueStacks, may advertise the App’s availability on BlueStacks via various social media platforms and/or search engines.
3.1.3 Branding. BlueStacks will conduct promotional campaigns at its election to acquire new Installs and Impressions of Advertiser’s App for the number of days and in the geo(s) listed in the Insertion Order. Such promotional campaigns may include advertising the App on BlueStacks.com, BlueStacks App Player and or affiliated third party sites or platforms.
3.1.4 Pre-Registration Promotion. BlueStacks will promote pre-registration for the App pursuant to the terms and conditions set forth on the applicable Insertion Order.
- OWNERSHIP, LICENSE AND PUBLICITY
4.1 Ownership. Advertiser retains all its rights, title and interest (subject to the license granted herein) in and to the App and Derivatives of the App created by Advertiser, and all the Intellectual Property Rights related therein or thereto.
4.2 License. Advertiser hereby grants to BlueStacks a non-exclusive, worldwide, assignable, sublicensable, royalty-free, irrevocable license during the Term to perform all such acts with respect to the Apps as are necessary, appropriate, or useful for BlueStacks to perform its obligations or exercise its rights in accordance with this Agreement and the applicable Insertion Order. Advertiser hereby grants to end users of the App a non-exclusive, worldwide, and perpetual license to perform, display, and use the App on their devices, except that Advertiser may include a separate end user license agreement in the App that will govern end users’ rights to the App in lieu of the foregoing license. All other rights not expressly granted herein with regard to the App are reserved by Advertiser. This Agreement does not convey to BlueStacks any ownership interest or title in or to the App.
4.3 Data Privacy. Both parties shall comply in all respects with all applicable privacy laws, regulations and policies in its collection, storage, processing, and sharing of personally identifiable information of end users in connection with the App. All end user and analytical data acquired through any tracking software is Confidential Information of BlueStacks, and no license is granted to Advertiser in relation to such data, unless explicitly provided otherwise.
4.4 Publicity. BlueStacks grants Advertiser a revocable, non-exclusive, non-transferable, non-assignable, royalty-free, limited license, during the Term, to use BlueStacks’ name, product name and logo (collectively “BlueStacks Marks”) on Advertiser’s website or in promotional and marketing materials solely in connection with the display, promotion, marketing, sale, and distribution of the App through the App Player, provided Advertiser shall, for each use, provide at least 48 hours prior notice to BlueStacks and obtain explicit written approval from BlueStacks in each case prior to such use. Advertiser grants to BlueStacks a revocable, non-exclusive, non-transferable, non-assignable, royalty-free, limited license to use Advertiser’s name, trademark, logo, app icon, app characters, app art, app banners and other identifiers (collectively “Advertiser Marks”) on the BlueStacks website(s), in the App Player or its promotional and marketing materials in connection with the display, promotion, marketing, sale, and distribution of the App. BlueStacks shall provide 48 hours prior notice to Advertiser for any other use of Advertiser Marks not provided in the foregoing and obtain explicit written approval from Advertiser in each case prior to such use. Either parties may solicit and publish quotes from senior management of the other party. Neither party may use the other party’s marks (Advertiser Marks or BlueStacks Marks, as the case may be) in a way that shall detrimentally affect the other party’s reputation.
- PAYMENT
5.1 Promotional Campaign Fees. Advertiser agrees to pay the fees as invoiced by Bluestacks for the promotional activities chosen by Advertiser on the applicable Insertion Order. The Promotional Campaign Fees (“Fee”) shall be calculated as listed below, subject to any maximums stated in the applicable Insertion Order:
5.1.1 CPC: Fee shall be equal to the result of (i) the CPC amount set forth in the applicable Insertion Order multiplied by (ii) the total unique clicks of the URL in the target geos.
5.1.2 CPI: Fee shall be equal to the result of (i) the CPI amount set forth in the applicable Insertion Order multiplied by (ii) the total Installs of the App in the target geos.
5.1.3 Branding: Fee shall be as stated in the Insertion Order.
5.1.4 Pre-Registration Promotion: Fee shall be equal to the result of the pre-registration payout rate multiplied by the total pre-registered users of the App in the target geos as listed in the Insertion Order
5.2 Terms. BlueStacks will invoice Advertiser all the Fees hereunder monthly. All payment by Advertiser hereunder shall be due within thirty (30) days of the date of the invoice. Advertiser shall make all payments to BlueStacks without any deduction or withholding of taxes. Late payments will be subject to fees at the rate of 1.5% per month or, if lower, the maximum rate allowed by law. If Advertiser fails to pay invoices when payment is due, then in addition to any other rights BlueStacks may have, BlueStacks shall have the right to suspend its promotional activities, including removing Advertiser’s app(s) from the App Player. If BlueStacks pursues collection efforts against Advertiser due to Advertiser’s failure to pay fees due under this Agreement, Advertiser shall reimburse BlueStacks for all its costs associated with the collection, including any attorneys’ fees related thereto.
5.3 Taxes. Payment under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Advertiser agrees to pay such taxes (excluding US taxes based on BlueStacks’ net income).
- REPRESENTATIONS AND WARRANTIES
Advertiser represents and warrants that (i) the App and all Intellectual Property Rights related therein or thereto were and will be owned solely by it and developed solely by its employees who have valid binding agreements with Advertiser assigning all such App and Intellectual Property Rights to Advertiser, and neither the App nor this Agreement (or its performance) will infringe, misappropriate or violate any Intellectual Property Rights or other rights or agreements; (ii) the App does not and will not contain any open source or other third party code, or any viruses or worms or other harmful or disabling code, or anything that defames, libels or otherwise injures or interferes with the privacy or publicity rights of any third party; (iii) the App is fully and commercially operational. Advertiser will indemnify BlueStacks from any loss, damage, settlement, or other amount or expense (including, without limitation, attorney fees) that results from any allegation inconsistent with the foregoing. Except for the licenses granted hereunder, neither party is transferring or licensing any Intellectual Property Rights to the other under this Agreement.
- CONFIDENTIALITY
Each party will not at any time use or disclose the terms of this Agreement or any information provided by or relating to the other party or its business which is (i) marked ‘confidential’, or (ii) under the circumstances, appear to a reasonable person to be confidential or proprietary and that is not demonstrably general publicly known (“Confidential Information”).
- TERM AND TERMINATION
8.1 Term. This Agreement will commence on the Start Date and terminate on the End Date specified on the Insertion Order.
8.2 Termination. In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business. Either may terminate this Agreement without any cause and without any liability, by giving thirty (30) days prior written notice to the other party.
8.3 Effect of Termination. Upon termination of this Agreement for any reason, both parties shall immediately return or destroy all copies of the other parties’ Confidential Information, and so certify to the other party. The following sections of this Agreement will survive termination or expiration of this Agreement: Sections 1, 4.3, 5, 6, 7, 8.3, 9 and 10.
- LIMITATION OF LIABILITY
EXCEPT FOR BODILY INJURY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR INDIRECT DAMAGES, INCLUDING LOST PROFITS, ARISING FROM THIS AGREEMENT, OR (II) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION DOES NOT APPLY TO LIABILITIES ARISING FROM BREACHES OF INDEMNIFICATION OR CONFIDENTIALITY, PAYMENT DUE UNDER THIS AGREEMENT, AND A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. EACH INSERTION ORDER SHALL BE TREATED AS A SEPARATE AND DISTINCT CONTRACTUAL OBLIGATION UNDER THIS AGREEMENT. EXCEPT FOR BODILY INJURY, A PARTY’S INDEMNIFICATION OBLIGATION UNDER SECTION 6 AND BREACH OF ITS CONFIDENTIALITY OBLIGATION UNDER SECTION 7, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES (OR AMOUNTS) IN EXCESS OF AMOUNTS RECEIVED BY BLUESTACKS FROM PARTNER OR OWED TO BLUSTACKS BY PARTNER IN CONNECTION WITH THE INDIVIDUAL INSERTION ORDER WHICH IS THE SUBJECT OF THE DAMAGE CLAIM. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties.
- MISCELLANEOUS
10.1 Notices. Any notice required or permitted by this Agreement shall be in English, in writing, addressed to the other party at the addresses shown in the Insertion Order or such other address as provided in writing by either party for such purpose, and shall be sent via email. Notices shall be effective as of the date of receipt or within seventy-two (72) hours of any such notice being sent, whichever is earlier.
10.2 Relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Partner does not have any authority of any kind to bind BlueStacks in any respect whatsoever.
10.3 Assignment. This Agreement is not assignable, transferable or sublicensable by either party except with the other parties prior written consent.
10.4 Entire Agreement; Waiver. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
10.5 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.6 Governing Law and Dispute Resolution. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions and excluding the UNCISG. The federal and state courts sitting in Santa Clara County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
10.7 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations under this Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause that is beyond the reasonable control of the party.
These TOS are effective October 1, 2016. Last updated February 6, 2022