GAME OF WHALES SDK TERMS AND CONDITIONS
Game of Whales Ltd., an Israeli private limited company, having its principal place of business at 10 Nahalat Yitzhak, Tel-Aviv, 6744809, Israel (“Game of Whales”, “we”, “us” or “our”) provides an analytics, monetization and optimization software-as-a-service for mobile applications (“Apps”), which enables the tracking, analysis and optimization of users’ activities on Apps (“SaaS”). The SaaS is available to App developers and/or publishers (“Developer”, "Customer") through implementation of the Game of Whales Software Development Kit (“Game of Whales SDK”), which can be downloaded from the Game of Whales’ website, at: www.gameofwhales.com (the “Site”) following Developer’s acceptance of these Game of Whales SDK Terms and Conditions (the “Terms”) which hereby govern all access and use of the Site and of the Game of Whales SDK (collectively- the “Service”). Developer, Customers and any person accessing or visiting the Site is hereby referred to hereunder as “you” or “your”.
Acceptance of the Terms
By entering to, connecting to, accessing or using the Service and/or downloading or installing the Game of Whales SDK, you represent and warrant that you have read and understood the following Terms and you agree to be bound by them and to comply with all applicable laws and regulations regarding your use of the Service, and you acknowledge that these Terms constitute a binding and enforceable legal contract between you and Game of Whales.
PLEASE READ THESE TERMS BEFORE USING THE SERVICES AND DOWNLOADING AND/OR INSTALLING THE GAME OF WHALES SDK. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT ENTER TO, CONNECT TO, ACCESS OR USE THE SERVICE OR GAME OF WHALES SDK (OR ANY PART THEREOF) IN ANY MANNER WHATSOEVER. Please note that the Services and the Game of Whales SDK are continuously undergoing development and testing of certain of its features and functionality and you may therefore experience occasional issues while using the Services and the Game of Whales SDK.
Our SaaS collects information regarding the activities (including spending) of users’ of your mobile application (the “End Users” and “End User Data”, accordingly). We will process and analyze the End User Data using our proprietary software to optimize game experience, increase monetization, and provide tools for optimized communication with End Users, manually or automatically in order to induce further actions by End Users. Our SaaS will generate analytic reports including graphs and statistics of the End User Data collected (the “Report”).
Account. In order to receive access to the SaaS, you must register to the Services and open an account (the “Account”). The Account will provide you with online access to all Reports and related services, including the provision of manual optimization tools and data relating to real- time purchases and other End User activities.
Login Credentials. You may open an Account by completing the registration form located at www.gameofwhales.com and providing a unique username and password (“Login Credentials”). You must provide accurate and complete information when opening an Account and keep your Account information accurate and up-to- date. You will remain fully and solely responsible for the maintaining confidentiality, and security of your Account, including Login Credentials and the Account activities. Any action, instruction or activity occurring through any such Login Credentials shall be deemed to be provided and/or taken by Developer, and Developer shall be solely responsible for all activities occurring under such Login Credentials. You agree not to disclose your Login Credentials to any third party. If you forget your password, you can request to have a new password sent to your registered e-mail address.
Unauthorized Use. You agree to immediately notify us of any unauthorized use or access of your Account and/or Login Credentials. We will not be liable for any losses or damages arising from any unauthorized use of your Account or Login Credentials, or other breach of security or any related damage or use, and you agrees to indemnify and hold Game of Whales harmless from any improper or illegal use of your Account or Login Credentials, and any resulting damage or loss, including by someone to whom you have given permission to use your Account and/or Login Credentials.
Game of Whales SDK Installation and License
Integration and Installation. In order to access and use the SaaS, you must integrate the Game of Whales SDK into your App. The Game of Whales SDK will record and upload the End Users’ Data to our secured servers and cloud servers (the “Servers”) for the purpose of providing you with access to the SaaS.
License. Subject to your compliance with the provisions of these Terms, Game of Whales hereby grants you a non-exclusive, non-transferable, non-sub- licensable, fully revocable, limited license to install, access and use the Game of Whales SDK as part of your mobile application for the limited purpose of receiving access to the Services and in accordance with these Terms.
We prohibit the conduct described below. Your failure to comply with the provisions set forth hereunder may result in (at our sole discretion) termination of these Terms and of your right to access and use the Site, Services and/or Game of Whales SDK, and may also expose you to civil and/or criminal liability. Except as expressly permitted hereunder, you may not, whether by yourself or by anyone on your behalf, (nor will you allow any third party to) do any of the following:
(i) copy, modify, create derivative works of, adapt, emulate, translate, reverse engineer, compile, decompile or disassemble, in any way, any portion of the content made accessible by us on or through the Site, the Services and/or the Game of Whales SDK, including any information, material and data obtained from or through the Site, the Services and/or the Game of Whales SDK in any way (collectively, the “Content”), or publicly display, perform, distribute, or otherwise use such Content, or permit others thereto, other than as expressly permitted under these Terms;
(ii) create a browser or border environment around the Site, the Services and/or the Game of Whales SDK and/or the Content, including any inline linking to any elements of the Site, the Services and/or the Game of Whales SDK or any part thereof, and/or frame or mirror any part of the foregoing;
(iii) interfere with or violate any other Developer’s right to privacy or other rights, or harvest or collect information about Developers of the Service without their express and informed consent, including using any robot, spider, site search or retrieval application, or other manual or automatic device or process to retrieve, index, or data-mine;
(iv) engage in any hostile activity towards the Site, the Services and/or the Game of Whales SDK or engage in any action or practice that reflects poorly on Game of Whales or otherwise disparage or devalue Game of Whales’ reputation or goodwill;
(v) impersonate any person or entity or provide false information on the Service, whether directly or indirectly, or otherwise falsely state or otherwise misrepresent your affiliation with any person or entity, or express or imply that Game of Whales or any third party endorses you, your website, service and/or mobile application, your business, or any statement it makes, or present false or inaccurate information about and/or through the Service;
(vi) interfere with or disrupt the operation of the Site, the Services and/or the Game of Whales SDK, or the Servers or networks that host the Site or Service (or any part thereof) or that make the Site or the Service available, or disobey any requirements, procedures, policies, or regulations of such Servers or networks;
(vii) sell, transfer, lease, assign, license, or exploit for any commercial purposes the Site, the Services and/or the Game of Whales SDK or any access to Site, the Services and/or the Game of Whales SDK and/or Content and/or any part thereof;
(viii) create a database by systematically downloading and storing all or any Content;
(ix) transfer or assign your Account's Login Credentials, even temporarily, to a third party;
(x) bypass any measures which may be used to prevent or restrict access to the Site, the Services and/or the Game of Whales SDK;
(xi) reverse engineer, decompile, disassemble, or otherwise reduce to human-perceivable form the Site, the Services and/or the Game of Whales SDK;
(xii) modify, revise, enhance, alter, copy, emulate or make derivative works, or allow copies, emulations or derivative works of the Site, the Services and/or the Game of Whales SDK or any part thereof;
(xiii) use the Site, the Services and/or the Game of Whales SDK, Content and/or any part thereof for any illegal or unauthorized purpose or in connection with obscene, defamatory, slanderous, hateful, illegal or politically disruptive environments;
(xiv) record via video, photograph, take screenshots, or otherwise make available the Site and/or the Services structure (platform, user interface, etc.) or tutorial videos of Game of Whales to third parties; and
(xv) transmit, distribute, display or otherwise make available through or in connection with the Site and/or Service any content, which may infringe third party rights, including intellectual property rights and privacy rights, or which may contain any unlawful content; or
Third Party Services and/or Websites
Fees. We may offer you the Game of Whales SDK under various payment terms and payment methods, as listed and available on the Site. In consideration for the SaaS, you shall pay us the amounts set forth on the public Site or in your personal page within Game of Whales platform, which may be revised from time to time (the “Fees”). We may choose to make the Game of Whales SDK available for no consideration for limited time or limited services.
Payment Terms and Methods. All Fees shall be non-cancellable and the sums paid non-refundable, unless otherwise agreed by Game of Whales and the Developer in writing. The Fees may be payable one-time in advance or by recurring monthly or other periodic payments, according to the applicable terms set forth in the Site. You may pay the Fees by electing one of the online payment methods displayed on the Site, such as PayPal, Apple App store, Google Play, Credit card, Bank transfer (“Online Payment Services”), which enable you to send and receive payment securely online using a credit card or bank account. You acknowledge and agree that, by using an Online Payment Service to make a payment: (i) we, or an Online Payment Service provider, may charge you via your designated method of payment for recurring charges, if and as applicable, for the purchase or subscription, and any other amounts (including any taxes and late fees, as applicable) that may accrue in connection with such purchase (as further specified below); and (ii) you will provide valid, accurate and up-to- date information regarding your payment method. Game of Whales is not affiliated with any of the Online Payment Services providers and has no control over, and assumes no responsibility for, the content, privacy policies or practices of the Online Payment Services. You will use the Online Payment Services at your own discretion and in compliance with the terms and policies of the respective Online Payment Service. You hereby agree to indemnify, and hold us harmless, from any liability, losses, damages, demands and claims that may arise or accrue against us as a result of your use of the Online Payment Service. You further agree to reimburse us for any costs and expenses incurred by us if we are required to commence any recovery action or proceedings against an Online Payment Service provider or if we are required to take any action as a result of you not having adequate funds in your account with your designated payment method (such as PayPal account). Any payment not made timely, in accordance with the payment terms displayed on the Site, shall accrue interest at a rate of one and a half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. Without derogating from other remedies available to Game of Whales, Game of Whales shall be entitled to suspend and disconnect access to the SaaS in case of late payment of Fees which was not corrected within 10 days of Game of Whales notice thereof.
Taxes. All Fees are stated and payable in US Dollars, and are exclusive of VAT. You will bear and be responsible to pay all taxes related to or arising from your use of the Game of Whales SDK and the provision of the Services, except for those taxes that Game of Whales is required to pay and which are based on Game of Whales income. You may not withhold or set off any Fees due to Company hereunder.
The End-User’s Data
Data Processing Agreement
To the extent such designation is required or applicable under applicable law, Developer shall be deemed the data controller and Game of Whales shall be deemed the data processor, and Developer hereby explicitly consent to the Data Protection Agreement (the “DPA”), available at https://www.gameofwhales.com/data-processing-agreement in its form at the time of Developer’s acceptance of these Terms.
Proprietary Information and Ownership
Intellectual Property. The Services, the Content and any and all intellectual property rights therein and related thereto, including, but not limited to, inventions, patents and patent applications, trademarks, trade names, logos, copyrightable materials, graphics, text, images, designs (including the “look and feel” of the Site), specifications, methods, procedures, information, know-how, algorithms, data, technical data, interactive features, source and object code, files, interface and trade secrets, whether or not registered or capable of being registered, including any modifications, enhancements, improvements, derivatives, updates and upgrades to any of the foregoing (collectively, “Intellectual Property”), are and shall at all times remain owned by, and/or licensed to Game of Whales, and are protected by copyright and other applicable intellectual property rights under the laws of the State of Israel and other laws. There are no implied licenses under these Terms and any rights or licensed not expressly granted to you hereunder are reserved by us, other than your rights to the End User Data which are reserved by you.
Trademarks. “Game of Whales”, “Game of Whales™”, Game of Whales’ marks and logos and all other proprietary identifiers used by us in connection with the Service (“Game of Whales Trademarks”) are all trademarks and/or trade names of Game of Whales, whether registered or not. All other trademarks, trade names, other distinguishing marks, and other trademarks (including different types of logos) that may appear in the Site and/or Service or any part thereof belong to their owners (”Trademarks of Third Parties”). Unless otherwise explicitly permitted these Terms no right, license or trademarks to the Game of Whales Trademarks or the Trademarks of Third Parties is granted hereunder.
Representations and Warranties
Your use of the Services is dependent and conditional on the fact that you hereby represent, warrant and agree that (i) the execution of these Terms does not and will not violate any other agreement to which you are bound or any law, rule, regulation, order or judgment to which you are subject; (ii) you possess the legal authority to enter into these Terms and to form a binding agreement under any applicable law; (iii) there is no other restriction, limitation, contractual or statutory obligation which prevents you from entering into these Terms and from fully performing its obligations hereunder; (iv) you will use the Services for your legitimate business purposes as contemplated by these Terms and you possess the professional knowledge and judgment necessary to decide whether to use the Services;(v) you are solely responsible for complying with applicable laws regarding use of the Service, or any other interaction and/or transaction you make through or in connection with the Service, including the determination of whether your use of the Service complies with the terms of the jurisdictions and laws applicable to you and all other parties of your interactions; (vi) you will not rely on Game of Whales Services and you fully understand that we do not provide any endorsement, support, representation or guarantee regarding the accuracy, reliability, truthfulness, legality or completeness of any information or content that may be available to you in connection with the Service, including any Third Party Services; (vii) you have obtained, and be deemed to have hereby granted to Game of Whales, all rights and consents necessary, including from End Users, to authorize Game of Whales to provide the Services and to use the End User Data as described hereunder; (vii) you will comply with all obligations and restrictions expressly set forth under these Terms.
Management of the Service
We will use industry standards to maintain the availability and security of the Service but we do not guarantee any specific level of availability of the Service and/or its Site. We will not be liable to you as a result of temporary service interruptions.
We reserve the right to modify, correct, amend, enhance, improve, make any other changes to, or discontinue, temporarily or permanently, the Services (or any part thereof), and/or block, limit, suspend or terminate your access to the Services, for any reason and at our sole discretion, in addition to any other remedies that may be available to us under any applicable law.
In addition, you hereby acknowledge and agree that the Content provided through the Site and/or the Services may be changed, extended in terms of content and form or removed at any time without any notice nor any responsibility or liability to you or any third party.
If you believe a user of any of our Services acted inappropriately, including through any illegal, offensive, violent or sexually inappropriate behavior, please immediately report such user to the appropriate authorities and to us at: firstname.lastname@example.org. Please note that any such report shall not relieve you from any of your obligations or liabilities nor require Game of Whales to perform any action which is not set out hereunder or required under applicable law.
Term. These Terms shall become effective as of the date hereof and shall remain in effect for as long as you are accessing the Services and using the Game of Whales SDK, unless earlier terminated as set forth below.
Termination for Cause. We may, in our sole discretion, terminate these Terms immediately in the event of a material breach by you of any of provisions of these Terms which is not cured within fourteen (14) days of your receipt of notice of such breach, in addition to any other remedies that may be available to us under any applicable law. In addition at any time, we may block your access to the Service and/or temporarily or permanently limit, suspend or terminate your Account, if we deem that you have breached any of these Terms in any manner, at our sole discretion, in addition to any other remedies that may be available to us under any applicable law.
Termination for Convenience. Each party may terminate these Terms for convenience at any time, upon thirty (30) days prior notice to the other party. Notwithstanding anything to the contrary herein, in case of termination of these Terms for convenience by Game of Whales, you shall be entitled to receive a refund for any pre-paid un-used Fees. Otherwise no refunds shall be provided.
Effect of Termination. Upon termination or expiration of these Terms, for whatever reason, and/or termination of your Account, all licenses granted to you hereunder, including the license to the Game of Whales SDK, will immediately expire, and you shall remove and delete the Game of Whales SDK from currently used Apps versions and destroy all copies of the Game of Whales SDK in its possession under currently used mobile applications version. In the event of termination of these Terms and your Account, we have no obligation to retain the End User Data and the End User Data shall be deleted following such termination. All terms and provisions hereunder that by their nature are intended to survive termination or expiration hereof, shall survive any termination or expiration of these Terms.
Disclaimers & Disclaimer of Warranty
GAME OF WHALES MAKES BEST EFFORT TO PROVIDE YOU WITH THE OPTIMAL SERVICES AND THE BEST USER EXPERIENCE. NOTWITHSTANDING THE AFORMENTIONED, THE SERVICES ARE COMPRISED OF SOFTWARE PROGRAMS AND THEREFORE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OTHER THAN AS EXPRESSLY PROVIDED UNDER THESE TERMS. GAME OF WHALES EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE SITE, SERVICE, CONTENT, GAME OF WHALES SDK OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. GAME OF WHALES DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, (I) REGARDING THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SERVICE AND/OR CONTENT; (II) THAT THE SERVICE AND/OR CONTENT WILL BE ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED; OR (III) REGARDING THE PERFORMANCE OF OR ACCURACY, QUALITY, CURRENCY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION PROVIDED BY THE SITE, SERVICE AND/OR GAME OF WHALES SDK. GAME OF WHALES DOES NOT GUARANTEE THAT THE INFORMATION AND ANALYTICS, INCLUDING THE REPORTS, WILL BE FREE OF INACCURACIES OR ERRORS. GAME OF WHALES WILL NOT BE LIABLE FOR ANY LOSS, INJURY, LOSS OF PROFITS OR REVENUES, LOSS OF TIME, LOSS OF RESROUCES AND/OR OTHER DAMAGES THAT MAY BE INCURRED BY YOU AS A RESULT OF, OR IN CONNECTION WITH, ANY DECISION MADE OR ACTION TAKEN OR NOT TAKEN IN RELIANCE ON THE SERVICES AND/OR SUCH INFORMATION AND ANALYTICS PROVIDED THROUGH THE SERVICES.
Limitation of Liability
IN NO EVENT SHALL GAME OF WHALES OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT GAME OF WHALES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. IN NO EVEN SHALL GAME OF WHALES’ CUMULATIVE LIABILITY UNDER THESE TERMS EXCEED AMOUNTS ACTUALLY RECEIVED BY GAME OF WHALES UNDER THESE TERMS DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH THE APPLICABLE CAUSE OF ACTION OR DAMAGE ARISES.
Developer Indemnification. You hereby agree to indemnify, defend and hold harmless Game of Whales and our respective employees, directors, officers, subcontractors and agents (“Game of Whales Indemnitees”) against any and all claims, damages, losses, costs or expense (including reasonable attorneys’ fees) that arise from (i) your use of the Service, the Site, the Content and/or Game of Whales SDK, other than as permitted under these Terms; (ii) your breach of any of your representations, warranties or obligations under this Agreement; (iii) any information that you or anyone using your Account may submit or access in the course of using the Service and/or Game of Whales SDK (including but not limited to any information that you may provide to us that is not in accordance with your obligations under this Agreement); and/or (iv) your violation of any applicable laws in connection with this Agreement.
Game of Whales Indemnification. Game of Whales shall indemnify, defend and hold harmless Developer against any actual losses, damages, costs and expenses (including reasonable attorney’s fees) finally awarded against Developer by a court of competent jurisdiction directly attributable to a third party claim directly arising out of: (i) Game of Whales’ gross negligence Game of Whales violation of any applicable law.
Indemnification Procedure. As a condition to the defense and indemnity set forth above, the Game of Whales Indemnitee or Developer, as applicable (the “Indemnified Party”) shall give the other Party (the “Indemnifying Party”) prompt notice of any such claim made against it and the Indemnifying Party shall be entitled, by written notice to such Indemnified Party, to assume sole control of the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof (collectively, “Claim”), at its own expense, provided that: (a) no settlement, consent order or consent judgment which involves any admission of any liability or wrongdoing, or any act or omission on the part of the Indemnified Party may be agreed to by the Indemnifying Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed; and (b) the Indemnifying Party shall keep the Indemnified Party informed of the status and progress of such Claim, the defense thereof and/or settlement negotiations with respect thereto. The Indemnified Party shall give the Indemnifying Party all reasonable assistance, at Indemnifying Party’s cost and expense, necessary in connection with such defense. The Indemnified Party shall have the right to employ separate counsel in the defense of any such claim and participate in the defense thereof.
Headings. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
Relationship. These Terms do not, and shall not be construed to create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto and both you and Game of Whales shall remain independent contractors.
Waiver. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default.
Publicity. Customer hereby permits Game of Whales to identify Customer as Game of Whales’ customer in its written marketing material and in the Site including by using Customer’s logo and trademark in such material and Site, unless Customer instructs Game of Whales in writing to cease such use.
Severability. If any provision of these Terms is held to be illegal, invalid, or unenforceable by a court of competent jurisdiction, the parties shall, if possible, agree on a legal, valid and enforceable substitute provision most resembling the desired effect of the deleted provision. The remaining portion of these Terms not declared illegal, invalid or unenforceable shall, in any event, remain valid and effective for the term remaining unless the provision found illegal, invalid, or unenforceable goes to the essence of these Terms.
Assignment. You may not assign, sublicense or otherwise transfer any or all of your rights or obligations under these Terms without our prior express written consent of Game of Whales, and any attempted or actual assignment thereof without such consent will be null and void. Game of Whales may assign its rights and obligations hereunder and/or transfer ownership rights and title in the Services, Site and/or Game of Whales SDK to any third party without your consent or prior notice to you.
Entire Agreement. These Terms constitutes the entire terms and conditions between the parties hereto relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Game of Whales.
Governing Law and Venue. These Terms shall be interpreted in accordance with and governed by the laws of the State of New York. The Parties agree that any legal or equitable action of whatever nature by or against the parties arising out of or related to these Terms shall be brought exclusively in the competent courts of NYC, NY.
Force Majeure. Each Party to this Agreement will be excused for delays in performing or from its failure to perform hereunder (other than payment delays) to the extent that the delays or failures result from causes beyond the reasonable control of such Party; provided that, in order to be excused from delay or failure to perform, such Party must act diligently to remedy the cause of the delay or failure.