Terms and conditions

22 April 2020

Please read the following terms of service (“Terms”) carefully, as they constitute a binding legal agreement between you (the entity registering to use the service) (“you” or “Client”) and deltaDNA Limited (“we” or “deltaDNA”). By clicking “accept”, accessing and/or using the Services (defined below), you acknowledge that you have read and agree to be bound by the Terms. If you do not agree to these Terms, please do not use the Services.

From time to time, deltaDNA may change, modify, add, or remove portions of the Terms, and reserves the right to do so at its discretion. If we modify the Terms, we will make them available and indicate the date of the latest version. We encourage you to review the Terms periodically for changes. Your continued use of the Services after revised terms have become effective indicates that you have read, understood and agreed to the current version of the Terms.

1. Definitions and interpretation

In the Agreement, the following words shall have the following meanings:

Advertisement means an in-game advert placed through use of the Unity Services;

Agreement means the agreement for the Services between the Client and deltaDNA as set forth in these Terms and, if applicable, a Services Confirmation;

Available means that the Client is able to connect to the website on which the Platform is hosted and access the substantial majority of functionality and content in the Platform, and that the Platform (and substantially all components thereof) are functioning correctly and accurately with a level of latency no greater than that experienced by services to the Platform with similar technology elements, functionality and numbers of end users;

Business Day means a day, other than a Saturday or Sunday or a public holiday in Scotland, when the banks in Scotland and London are open for business;

CCPA means the California Consumer Privacy Act of 2018

Charges means the charges for the Services, if applicable, as set out in the Services Confirmation;

Confidential Information means all information disclosed by one party to the other or obtained by a party pursuant to or in connection with the Agreement relating to the customers, trade secrets or business affairs of the other, or relating to the subject matter of the Agreement, and whether or not expressed to be confidential;

Consultancy Services means the consultancy services, if any, as described in the Services Confirmation;

Documentation means any documents made available to the Client by deltaDNA which describe and provide further information about the Services and instructions for their use;

Data Protection Laws means (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018, or (iii) any applicable data privacy law, including but not limited to the CCPA and all laws deemed adequate to GDPR by the European Data Protection Authorities;

deltaDNA means DELTADNA LIMITED (a company registered in Scotland with company number SC383152) whose registered office is at 25 Greenside Place, Edinburgh, Scotland, EH1 3AA and trades as deltaDNA and it’s affiliates including Unity Technologies SF; effective April 1, 2020, the services will be provided by Unity Technologies SF, which is an entity duly organized and existing under the laws of the state of California, and all references to “deltaDNA” or “Unity” herein will mean “Unity Technologies SF” and its affiliates;

GDPR means the General Data Protection Regulation ((EU) 2016/679);

Initial Period means the period stated as such in the Services Confirmation or online sign up flow referencing these Terms;

Intellectual Property Rights means any and all intellectual property or industrial rights of any description anywhere in the world including but not limited to any patents, trade marks, domain names, registered designs, copyright (including but not limited to rights in computer software, object and source code), database rights, unregistered design rights, inventions, discoveries, specifications, formulae, processes, know how, trade secrets, confidential information and any analogous or similar right in any jurisdiction (whether registered or unregistered) and any applications or rights to apply for registration of any of them;

Materials means all reports, presentations and other materials to be provided by deltaDNA as part of the Services including those stated in the Services Confirmation;

Personal Data has the meaning prescribed to it under applicable Data Protection Laws;

Platform means the deltaDNA tool through which deltaDNA will provide the Platform Services and which is used in relation to the Unity Services if applicable;

Platform Criteria means the criteria relating to the use of the Platform by the Client as set out in the Services Confirmation;

Platform Services means the analytic data services or other services as set out in the Services Confirmation, if applicable, and/or Documentation;

Renewal Period means the period specified as such in the Services Confirmation or as extended in writing by deltaDNA, or, if no such period is specified, a twelve (12) month period;

Services means the Platform Services and, if applicable, the Unity Services and/or the Consultancy Services;

Services Confirmation means the ordering documentation or online sign-up or subscription flow that references these Terms;

Unity Services means new products or features of deltaDNA’s Services‘ utilizing Unity technology to be provided by deltaDNA if the Client uses, agrees to use, or directs deltaDNA to provide such products or services, or stated as such in the Services Confirmation; and

Software means the online applications provided by deltaDNA in relation to the Platform Services and/or Unity Services.

2. Duration

2.1 The Agreement shall commence on the date you click “accept”, access and/or use the Services, or, if accessing Services pursuant to a Services Confirmation, the effective date set forth therein (“Effective Date”), and, unless terminated earlier in accordance with its terms, shall continue for the Initial Period and thereafter automatically renew for successive Renewal Periods until either party notifies the other in writing at least ninety (90) days before the end of the Initial Period or applicable Renewal Period, in which case the Agreement will terminate upon expiry of that period.

2.2 If Unity Services and /or Consultancy Services are being provided, these shall be provided for the same period as the set out in clause 2.1 unless stated otherwise in the Services Confirmation. The Client may choose to cease receiving Unity Services and any Consultancy Services which were not for a fixed duration, by giving deltaDNA at least ninety (90) days’ notice in writing, subject to such cessation not taking effect until expiry of the Initial Period. The cessation of such Services shall not affect the existence of the Agreement or the provision of Platform Services.

3. The services

3.1 In consideration of payment by the Client of the Charges, deltaDNA shall provide the Services to the Client in accordance with the Agreement.

3.2 The Client shall promptly provide deltaDNA with all such information, assistance and materials as deltaDNA may reasonably require for the performance of its duties under the Agreement.

3.3 The Client shall not access, store, distribute or transmit: (i) any malware, spyware, adware, Trojan horse, computer virus, or other harmful or deleterious software routines; or (ii) any material during the course of its use of the Services which:
3.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.3.2 facilitates illegal activity;
3.3.3 depicts sexually explicit images;
3.3.4 promotes unlawful violence;
3.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;

3.3.6 results in automated decisionmaking having significant affect on data subjects without their consent, or in any case, in contravention of the prohibited bases for automated decisionmaking under GDPR; or

3.3.7 is otherwise illegal or causes damage or injury to any person or property, and deltaDNA reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to any material that breaches the provisions of this clause 3.

3.4 The Client shall not (except where otherwise permitted under the Agreement or under applicable law):
3.4.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
3.4.2 access all or any part of the Services, Software and/or Documentation in order to build a product or service which competes with the Services and/or the Documentation;
3.4.3 use the Services, Software and/or Documentation to provide services to third parties;
3.4.4 subject to clause 19, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, Software and/or Documentation available to any third party except as authorised under the Agreement; or
3.4.5 attempt to obtain, or assist third parties in obtaining, access to the Services, Software and/or Documentation, other than as provided under this clause 3.

3.5 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and shall keep all passwords for the Services secure, and, in the event of any such unauthorised access or use, promptly notify deltaDNA.

3.6 The Client represents and warrants that, in connection with any application that is directed to children under the age of 13 or is labelled or described as a “Kids” or “Children’s” application, it will not transmit to deltaDNA any “Personal Information,” as that term is defined in the Children’s Online Privacy Protection Act (COPPA), except for a persistent identifier (such as a device identifier), unless the Client has received COPPA-compliant verifiable parental consent for the collection of such information.  The Client represents and warrants that it will not transmit to deltaDNA any Personal Information, as that term is defined in COPPA, associated with any user who represents to the Client, such as through an age-gating mechanism, that he or she is under the age of thirteen (13).

4. Supplier obligations

4.1 deltaDNA shall use its reasonable commercial endeavours to make the Platform Services available twenty-four (24) hours a day and seven (7) days a week except for:
4.1.1 planned maintenance; and
4.1.2 unscheduled maintenance provided deltaDNA has used reasonable endeavours to give the Client at least one hour’s notice.

4.2 deltaDNA shall provide the Platform Services in accordance with the service levels set out in the Annex to these Terms.

4.3 deltaDNA shall provide support to the Client in relation to the Platform Services as set out in the Services Confirmation.

5. Charges and payment

5.1 In consideration of the performance by deltaDNA of its obligations under the Agreement in respect to the provision of Services, the Client shall pay deltaDNA the Charges in accordance with the provisions of the Agreement.

5.2 When ordering the Services, the Client will have the option to: (i) elect a billing account to facilitate a monthly electronic payment and be charged in accordance with clause 5.4; or (ii) to be invoiced monthly and be charged in accordance with clause 5.3. The Client can elect a billing option when it first sets up its account otherwise it will be prompted to do so when it enters a billing tier.

5.3 If the Client elects to be invoiced monthly deltaDNA shall invoice for the Charges incurred for Services and Materials in respect of Services performed in that month. Invoices shall be due and payable on issue and the Client shall pay deltaDNA’s invoices:
5.3.1 within thirty (30) days of the date of the invoice; and
5.3.2 in full and in cleared funds to a bank account nominated in writing by deltaDNA.

5.4 If the Client elects to be charged electronically, deltaDNA will automatically deduct the Charges for Services performed in that month from the Client’s billing account on or around the 10th of each month. By providing billing account details the Client authorises deltaDNA to charge the Client for the Services in accordance with this clause and warrants that it is authorised to use the billing account in this way.

5.5 Charges due for Unity Services shall be applied as described in clause 7.

5.6 Time for payment shall be of the essence of the Agreement.

5.7 If the Client fails to make any payment due to deltaDNA under the Agreement, then the Client shall pay interest on the overdue amount in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as may be amended from time to time). Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.

5.8 All amounts payable by the Client under the Agreement are stated exclusive of amounts in respect of state or local sales, value-added, or other tax chargeable for the time being (“Tax”). Where any taxable supply is made under the Agreement by deltaDNA to the Client, the Client shall, on receipt of a valid Tax invoice from deltaDNA, pay to deltaDNA such additional amounts in respect of Tax as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.  Client shall not withhold any taxes from amounts payable to deltaDNA under the Agreement without prior consent from deltaDNA, which shall not be unreasonably withheld.  Many countries offer withholding exemption treaties and withholding may be avoided.  In such cases, deltaDNA will provide Client on written request with documentation sufficient to substantiate reduced (if any) withholding taxes subject international tax treaties.  In the event any taxes are withheld upon written consent of deltaDNA, Client shall furnish deltaDNA a tax withholding report detailing amounts due less withholdings within forty-five (45) days of making payment to deltaDNA. Any unauthorized tax withholdings or failure to provide report detailing any withholding may result in unpaid amounts and subject to Terms of the Agreement.

5.9 All sums payable to deltaDNA under the Agreement shall become due immediately on termination or expiry of the Agreement, notwithstanding any provision to the contrary. This clause 5 is without prejudice to any right to claim for interest under the law, or any such right under the Agreement.

5.10 On each anniversary of the Effective Date, deltaDNA has the right to adjust the fees by the latest prevailing UK annual RPI inflation rate.

5.11 The Client acknowledges that the Charges are based on, and subject to, compliance with the Platform Criteria. If the Client requires additional resources than set out in the Platform Criteria, then deltaDNA reserves the right to charge for any additional use of the Services by the Client which does not meet the Platform Criteria.

6. Items supplied by the client

6.1 The Client procures that any information, data or items provided to deltaDNA for the purposes of the Agreement (including, but without limitation, any editorial content, brands, logos and trade names) are free from any defamatory or unlawful content and that they do not infringe any Intellectual Property Rights or other rights of any third party.

6.2 The Client shall defend, indemnify and hold harmless deltaDNA (and keep it indemnified) against all costs, claims, expenses and other liabilities arising out of or in connection with any breach by the Client of its obligations in clause 6.1.

7. Unity Services

7.1 If Client uses or opts-in to the Unity Services, Client agrees and acknowledges that the Unity Services are governed by the applicable terms and conditions (updated from time to time) of the Unity Monetization Services Terms of Service available here as well as any applicable Data Protection Agreement incorporated therein (collectively the “Unity Terms”).

7.2 While the Agreement is in force, deltaDNA shall be entitled to retain a percentage of Net Revenues (as defined by the Unity Terms) collected by deltaDNA in connection with any and all Advertisements delivered by deltaDNA through Unity technology or otherwise charge for products and services as described in the Unity Terms.

7.3 deltaDNA may change its fees and payment policies for Unity Services from time to time in which case deltaDNA shall notify the Client in writing. In the event the Client does not want to continue the Unity Services upon notice of the revised fees and/or payment policies the Client shall be entitled to terminate the Unity Services in writing within thirty (30) days of providing such written notification to deltaDNA.

8. Data protection

8.1 The Client warrants, represents and undertakes to deltaDNA that in respect of any data provided by it to deltaDNA or to which it grants deltaDNA access under or in connection with the Agreement that constitutes Personal Data for the purposes of Data Protection Laws, the Client has provided all required notices and disclosures and obtained the necessary consent or permission of any individual to whom Personal Data relates (and for Personal Data collected from or relating to children or minors, the necessary consent or permission of any parent(s) or legal guardians as required by applicable Data Protection Laws) for the use of the Personal Data by deltaDNA under or in connection with the Agreement and to the transfer of that data outside the European Union. The Client shall defend, indemnify and hold harmless deltaDNA (and keep it indemnified) against all costs, claims, expenses and other liabilities arising out of or in connection with any breach by the Client of its obligations in this clause 8.

8.2 The Client is the controller and deltaDNA is the processor of any Personal Data under GDPR which deltaDNA processes on behalf of the Client for the purposes of providing the Services. DeltDNA is a Service Provider under CCPA.  In the event of an assignment of the Agreement to Unity Technologies SF (“Unity”), the Client agrees that the Controller-Processor terms set out here apply in addition to these terms, unless the Client has an existing data protection agreement with Unity in which case those terms shall apply.  If applicable, the Unity Services delivered by deltaDNA will be governed by the applicable data protection agreement set out in the Unity Terms.

8.3 Unless otherwise required or permitted by law, deltaDNA shall only process or use the Personal Data to provide services to Client for the duration of the Agreement or until otherwise instructed by the Client in accordance with clause 8.5.6.

8.4 The categories of data subjects will be the Client’s end users and deltaDNA may process the following types of Personal Data on behalf of the Client: user IDs, birth year, names, IP addresses, device IDs, email addresses and contact details and any other information that the Client or end users may provide from time to time.

8.5 deltaDNA shall:
8.5.1 except as required by law, process the Personal Data only in accordance with the Client’s documented reasonable instructions from time to time, for the purposes of providing the Services and for no other purpose;
8.5.2 implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of the processing the Personal Data as required under Article 32 of the GDPR;
8.5.3 ensure that persons authorised by deltaDNA to process the Personal Data are under appropriate confidentiality obligations in respect of the Personal Data;
8.5.4 at the Client’s cost, provide reasonable assistance on request to the Client in complying with the rights of data subjects and with the Client’s statutory obligations relating to data security, data protection impact assessments and related prior consultation procedures taking into account the nature of processing and the information available to deltaDNA;
8.5.5 notify the Client in writing as soon as possible, and in any event without undue delay, after  becoming aware of any breach of security which results in any unauthorised disclosure, loss of, or damage to, any Personal Data;
8.5.6 save only to the extent required by law, after expiry or termination of the Agreement and at the Client’s cost, return to the Client or destroy, at the request of the Client, all Personal Data in the possession or control of deltaDNA;
8.5.7 at the Client’s cost, make available to the Client such information as is reasonably necessary to demonstrate deltaDNA’s compliance with this clause 8;
8.5.8 at the Client’s cost, allow the Client to appoint an independent auditor to audit and inspect deltaDNA’s compliance with this clause 8. Such audit may occur once per calendar year, unless the Client can demonstrate that it has genuine suspicion that deltaDNA has breached its obligations in this clause 8. Such an audit shall be carried out during business hours and the Client shall provide at least thirty (30) Business Days’ notice of any such audit, unless the Client can demonstrate that it has genuine suspicion that deltaDNA has breached its obligations in this clause 8 in which case the Client shall provide at least three (3) Business Days’ notice of any such audit;
8.5.9 transfer the Personal Data to a country outside the European Union , provided that appropriate safeguards are in place to permit the transfer of the Personal Data outside the European Union, or any jurisdiction requiring safeguards under its Data Protection Laws and that such transfer is in accordance with such Data Protection Laws; and
8.5.10 transfer Personal Data to a third party sub-processor that deltaDNA has engaged with in relation to any element of the Services, provided that such engagement is in accordance with Data Protection Laws and deltaDNA is fully liable for the actions of such sub-processor.

8.6 If requested by deltaDNA, the Client shall provide deltaDNA with such evidence as deltaDNA requests to demonstrate that any documented instructions given by the Client are in compliance with the Data Protection Laws, including but not limited to circumstances where the Client instructs deltaDNA to transfer the Personal Data outside the European Union.

8.7 Clause 8.1 shall survive the expiry or termination of the Agreement.

9. Intellectual property

9.1 The Client acknowledges and agrees that deltaDNA and/or its licensors own all Intellectual Property Rights in the Documentation, Platform, Software and Services. Except as expressly stated herein, the Agreement does not grant the Client any Intellectual Property Rights in respect of the Documentation, Platform, Software or Services.

9.2 deltaDNA confirms that it has all the rights in relation to the Documentation, Platform, Software and Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the Agreement.

9.3 The Client will own all Intellectual Property Rights in all data and information about the Client’s customers and prospects that the Client supplies to deltaDNA or which is obtained by deltaDNA on the Client’s behalf.

9.4 Subject to clauses 9.5 and 9.6 below, as between the Client and deltaDNA, the Client will also own all Intellectual Property Rights in Materials that are specifically produced by deltaDNA for the Client and which have been paid for by the Client and where ownership of such Materials in favour of the Client is explicitly stated in the Services Confirmation. The Client hereby grants to deltaDNA a perpetual, irrevocable, sub-licensable, royalty-free licence to use and reproduce the Intellectual Property Rights owned by the Client in Materials pursuant to the preceding sentence. The Client will not own any Intellectual Property Rights in any works, materials or concepts produced by deltaDNA which the Client does not accept and/or which does not form part of the Materials, and all such Intellectual Property Rights will be retained by deltaDNA.

9.5 deltaDNA will own all Intellectual Property Rights in any pre-existing Materials that deltaDNA supplies or makes available to the Client and any modifications or alterations made to them and any works derived from them. All Intellectual Property Rights in any product or material deltaDNA obtains for the Client from a third party will belong to that third party unless deltaDNA agrees otherwise in writing.

9.6 Unless otherwise agreed between deltaDNA and the Client in writing, any rights that deltaDNA obtains for the Client to use any original illustrations, photos, artwork or other works or materials will cover one use only for the purpose of providing the Services.

10. Confidentiality

10.1 Except as provided by clauses 10.2 and 10.3, the party who receives the Confidential Information (the Receiving Party) from the party who discloses the Confidential Information (the Disclosing Party) shall at all times during the continuance of the Agreement and after its termination undertake to the Disclosing Party to:
10.1.1 keep all Confidential Information confidential and accordingly (subject to the provisions of clause 10.2) not to disclose any Confidential Information to any other person;
10.1.2 not use any Confidential Information for any purpose other than the performance of the obligations under the Agreement;
10.1.3 not copy, reproduce or record any of the Confidential Information except to the extent reasonably necessary in accordance with the Agreement; and
10.1.4 promptly on the Disclosing Party’s request, return any and all copies reproductions or recordings of the Confidential Information save to the extent such is necessary to enable the Receiving Party to exercise its rights or perform its obligations under the Agreement.

10.2 Any Confidential Information may be disclosed by the Receiving Party to:
10.2.1 any governmental or other authority or regulatory body; or
10.2.2 any employees of the Receiving Party (or any of the Receiving Party’s sub-contractors or agents), to such extent only as is necessary for the purposes contemplated by the Agreement, or as is required by law and subject in each case to the Receiving Party using its reasonable endeavours to ensure that the person in question keeps the same confidential and does not use the same except for the purposes for which the disclosure is made.

10.3 The Agreement shall not apply to any Confidential Information that:
10.3.1 is or becomes public knowledge (other than as a result of the default of the Receiving Party or any other person to whom the Confidential Information is disclosed under the Agreement);
10.3.2 is known to the Receiving Party under no obligation of confidence before the Confidential Information is disclosed;
10.3.3 lawfully becomes available to the Receiving Party from a third party without breach of any obligation of confidence to the other party;
10.3.4 is required to be disclosed by law; or
10.3.5 is independently developed by the Receiving Party.

11. Limitation of liability

11.1 Except in connection with the Client’s indemnity obligations hereunder, neither party shall be liable to the other in contract, delict (including without limitation negligence), breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other party:
11.1.1 of an indirect or consequential nature; nor
11.1.2 for any economic loss, loss of turnover, profits, business, data, reputation or goodwill.

11.2 Subject to clause 11.1, the entire liability of deltaDNA and its affiliates under or in connection with the Agreement (including for breach of contract, negligence, breach of statutory duty or otherwise, howsoever arising) in any calendar year shall not exceed the aggregate of Charges actually paid under or in connection with the Agreement in that calendar year.

11.3 Nothing in the Agreement shall have the effect of limiting or excluding the liability of deltaDNA or the Client for death or personal injury arising out of its negligence, for fraud or otherwise as prohibited by law.

11.4 deltaDNA shall not be responsible for the accuracy of its advice based upon inaccurate or incomplete information provided by the Client.

11.5 The Services are provided “as is”, without any conditions, warranties or other terms of any kind. Accordingly, to the maximum extent permitted by law, deltaDNA excludes all representations, warranties, conditions and other terms (including, without limitation, the conditions implied by law of satisfactory quality, and fitness for purpose) which, but for this clause 11.5, might have effect in relation to the Services.

12. Termination and suspension

12.1 deltaDNA may in its sole discretion and at any time suspend or discontinue providing the Services to you, with or without notice, and without any liability for such termination; provided, however, that in the event that deltaDNA terminates the Agreement for convenience and not as a result of your breach thereof, deltaDNA shall provide a pro-rata refund of unused pre-paid Charges, if any.. In the event of a suspension or discontinuation of the Services due to your misuse of the Services (including where you are in violation of clauses 3.3, 3.4 and 6.1) and/or unpaid fees, we  may require an additional fee to re-start the Services following such suspension.

12.2 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect on giving written notice to the other party if:
12.2.1 the other party commits a material breach of any term of the Agreement which breach is irremediable or, in the event of a remediable breach the other party has failed to remedy that breach within a period of thirty (30) days after being notified in writing to do so; or
12.2.2 the other party becomes the subject of a voluntary or involuntary proceeding concerning insolvency, receivership, liquidation, or composition for the benefit of creditors.

12.3 Any and all provisions or obligations contained in the Agreement which by their nature or effect are required or intended to be observed or performed after termination of the Agreement will survive the expiration or termination of the Agreement and remain binding upon and for the benefit of the parties.

12.4 On termination of the Agreement for any reason:
12.4.1 the Client shall pay to deltaDNA all outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, deltaDNA may submit an invoice for Services actually provided, which shall be payable immediately on receipt (to be clear, this shall apply even if under the other payment provisions of the Agreement, deltaDNA would not at that stage otherwise be entitled to submit an invoice in respect of Services performed); or
12.4.2 deltaDNA will be entitled to deduct any outstanding Charges from your billing account.

13. Indemnity

13.1 Client undertakes to indemnify, defend and hold harmless deltaDNA, its employees, contractors, officer and directors, or users from any against any and all claims, liabilities, penalties, settlements, judgments, fees (including reasonable legal fees) arising from: (i) any information that Client or anyone using Client’s account may submit or access in the course of using the Unity Services; (ii) Client’s breach of the Agreement; and (iii) any breach or failure by Client to comply with all laws and regulations in connection with Client’s use of the Unity Services, whether or not described herein.

13.2 If the Client uses the Unity Services on behalf of any third party, the Client represents and warrants that Client is authorised to act on behalf of, and bind to the Agreement, that third party. Client shall ensure that each third party is bound by and abides by the Agreement. Client undertakes to indemnify, hold harmless and defend deltaDNA, its parents, subsidiaries, affiliates, officers, contractors and employees, at Client’s expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable legal fees) incurred by deltaDNA, arising out of or relating to: (i) any representations or warranties made by Client concerning any aspect of deltaDNA ‘Unity’ technology; (ii) any claims made by or on behalf of any third party pertaining directly or indirectly to the Client’s use of such technology; (iii) violations of Client’s obligations of privacy to any third party; and (iv) any claims with respect to acts or omissions of third parties in connection with deltaDNA’s Unity Services technology.

14. Force majeure

Excepting only an obligation to pay Charges, neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, the act or omission of any internet service provider, and the affected party shall immediately notify the other party in writing of the nature and extent of such events. The affected party shall take all steps as reasonably available to it (to the extent such steps do not result in the affected party incurring any expenditure) to bring the event to a close, or to find a solution to the event.

If the affected party is prevented from performing all or a substantial part of its obligations for a period of twenty (20) Business Days, the other party shall be entitled to immediately terminate the Agreement on giving written notice to the affected party, in which case neither party shall have any liability to the other except that the rights and liabilities that accrued prior to such termination (including, without limitation, any payment obligations) shall continue to subsist.

15. Waiver

A waiver of any right or remedy under the Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.

16. Severance

If any court or competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected.

17. Entire agreement

17.1 The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understanding or agreement between them, whether written or oral, relating to its subject matter.

17.2 For the avoidance of doubt, the Agreement supersedes and override all other terms and conditions appearing elsewhere including, without limitation, any terms and conditions of the Client referred to on any website or which the Client may purport to apply under any purchase order or acknowledgement of delivery or similar document; and/or established between deltaDNA and the Client by course of dealing.

18. No partnership or agency

Nothing in the Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other.

19. Assignation and sub-contracting

deltaDNA has the right to assign or otherwise transfer the Agreement or any part of it at any time and without notice. The Client may not assign or otherwise transfer the Agreement or any part of it without the prior written consent of deltaDNA.

20. Notices

Any notice or consent required or permitted under the Agreement shall be in writing and shall be sent by first class post, hand delivery, or email.

21. Law and jurisdiction

21.1 The Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims), shall be governed by, and construed in accordance with, the laws of California.

21.2 The parties irrevocably agree that the courts of the Northern District of California shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Agreement or its subject matter or formation (including, without limitation, non-contractual disputes or claims).

22. Compliance with the bribery act 2010

In performing its obligations under the Agreement, deltaDNA shall comply with its obligations under the UK Bribery Act 2010.

23. Third party rights

A person who is not a party to the Agreement shall not have any rights under or in connection with it.

24. Use of data

24.1 deltaDNA may use individual level player data in accordance with applicable law, including Data Protection Laws and its then current privacy policy. From time to time, deltaDNA may, notwithstanding any other provision of the Agreement, use aggregated player data for research and marketing purposes (in accordance with applicable law, including Data Protection Laws), and the development of new or existing products, database functionality, and services.

24.2 The Client agrees that deltaDNA has the right, for any purpose, to collect, retain, use and publish in an aggregate manner, subject to the terms of its current privacy policy, information collected in Client’s use of Unity Services, including, without limitation, data collected by the Unity Services technology on the characteristics and activities of end users of Client’s applications (“User Data“).

24.3 The Client undertakes to post a privacy policy which will provide notice of the Client’s use of a tracking pixel, agent or any other visitor identification technology that collects, uses, shares and stores data about end users of the Client’s application including, if applicable, the Unity Services technology. The Client undertakes to provide all required notices and disclosures and obtain all end user consents required by applicable law before the Client uses Unity Services and understands that Unity Services may not be able to function as designed without necessary User Data. If deltaDNA is providing Unity Services the Client shall also include a link to the Unity privacy policy (from its privacy policy).

25. Fair and reasonable use of the service

25.1 The Charges are based on fair and reasonable use of the Service. Unless specific provisions have been made in the Services Confirmation, deltaDNA classifies fair and reasonable use as:
i. Direct Access Queries: average 250 per day during month.
ii. Events: 100 per DAU average during month.
iii. In-game engagements: average 20 per DAU during month.
iv. Out-of-game messages: average 12 per MAU during month.
v. 50 maximum active segments.

25.2 These metrics are calculated and monitored for each calendar month based on activity within that month. In the first instance deltaDNA and the Client will work together to adjust performance to work within these criteria. If the Client is unable to work with deltaDNA to manage its Platform usage within these thresholds then an additional fee may be charged.

25.3 MAU (Monthly Active Users) is calculated on the basis of at least one Event being collected for each unique user ID provided by the client to deltaDNA. A user ID is deemed active and counted in the MAU count for that month if it triggers at least one Event that month or if the Client sends an Event linked to that user ID to deltaDNA.

25.4 An Event is defined as any data record that is received and processed by deltaDNA on behalf of the Client and counts towards the total events for that month. This includes:
i. Events created by the Client and sent either from the game or its server.
ii. Events automatically sent by the SDK.
iii. Events sent by 3rd party integration.
iv. Events created to track in game engagements.
v. Events created to track out of game messages sent.
vi. Events that fail because they do not meet the schema definition.
vii. Events with arrays get split into separate events and the separate events will count the total number of events created.

Service level agreement

1. Uptime service level commitment

deltaDNA will procure that, except for:
i. failure of the public Internet;
ii. force majeure events (in accordance with clause 14 of the Agreement);
iii. short-term incidents related to unexpectedly large spikes in traffic related to major new content launches or live events;
iv. regular scheduled maintenance; and
v. security patches requiring implementation on short notice, data is available within three (3) hours of it being received by the platform for 95% over a thirty (30) day period, and the Services shall be available;
i. Data Collection: 99% over a thirty (30) day period;
ii. Engage Response: 98% over a thirty (30) day period; and
iii. Access to the platform: 98% over a thirty (30) day period.

2. Back-ups

As part of the Services, deltaDNA will perform incremental and cumulative back-ups of the Materials and data provided by the Client to deltaDNA at least once every week.

3. Data processing

3.1 deltaDNA servers are set to UTC.

3.2 The Client acknowledges that some end user devices do not have their time and date set correctly. This is out of deltaDNA’s control but does impact the accuracy of the data. In addition, devices may have intermittent internet connectivity, which prevents upload at the time of data generation. To minimise the effects of these issues, the following processing rules apply:
i. data is accepted that is dated within a minimum of thirty-one (31) days previous to the current timestamp on the deltaDNA servers; and
ii. data is accepted that is dated within a maximum of one (1) day ahead of the current timestamp on the deltaDNA servers (this is to take account of users in different time zones).

4. Data availability

4.1 The standard terms for data availability are as follows:
i. Measure Dashboards: aggregated data which is held for the duration of the contract.
ii. Analyze tools: ninety-three (93) days of event level data or as set out in the Services Confirmation.
iii. S3 Archive: the Client has the option to store an archive of event data on Amazon S3 (the S3 bucket will be owned, managed and maintained by the Client).

4.2 Data is purged once per day at 08:00 UTC. Due to time zone and device settings, event date transmitted to deltaDNA are not always within the last twenty-four (24) hours, as such more than one (1) event date may be visible in the stored objects up until the daily purge.

4.3 If ninety (90) days have lapsed since the last event was sent to your game/app in the platform, the environment will be classed as dormant and the data from that environment will be archived.

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