By downloading and/or using the Engine SDK (“SDK”) and related Engine services (the SDK and related Engine services collectively, “Engine” or the “Engine Services”), you agree to these Engine Terms on behalf of yourself and any entity (e.g., your employer) on whose behalf you use the Engine Services. Unless/until Factual changes these Engine Terms or notifies you otherwise, these Engine Terms replace the standard Factual Terms of Service for all purposes related to the Engine Services.
Factual may modify these Engine Terms at any time, and you agree to be bound by such modifications if you continue to use Engine. We may notify you by making the revised version available on this page, and an updated revision date will indicate that changes have been made. If you have entered into a negotiated agreement that has been signed by Factual that governs your use of the Engine Services that by its terms supersedes these Engine Terms, your use of the Engine Services included in that agreement is governed by such agreement.
You can only use the Engine Services if you are at least 16 of age or older and you get consent from your parent or guardian. Without a parent or guardian’s consent, you must be at least age 16 to use the Engine Services. If you are over 16 but under 18 or are otherwise a minor in your jurisdiction, then your parent or guardian needs to review these Engine Terms and you can only use the Engine Services if both you and your parent or guardian agree to these Engine Terms. Your parent or guardian must accept these Engine Terms on your behalf when your account is created.
If you are the parent or guardian of a child who is over 16 but under 18, then you accept full responsibility for that child’s use of the Engine Services, including any fees and all legal liability incurred by your child.
You may only use the SDK with applications (“Apps”) that you own or control. YOU MUST NOT INSTALL THE SDK ON OR USE ENGINE WITH ANY APP THAT IS SUBJECT TO THE CHILDREN’S ONLINE PRIVACY PROTECTION ACT (“COPPA”).
ACCOUNTS, PASSWORDS, APIS
To use the Engine Services, including the SDK, you will be required to create an account. All your account information must be accurate and complete. You are solely responsible for activity that occurs in your account. Engine may access and make use of Factual-hosted (e.g., server side) resources and you may not access or use such resources other than via SDK. You cannot share your password or your API key with any third party (except for contractors helping you with your App) and you must notify us immediately of any unauthorized use of your account. We reserve the right to close your account at any time for any or no reason, with or without notice, and in such case, you may not reopen an account without our express written permission.
Factual grants you a nonexclusive, non-transferable license to (a) implement the SDK in your Apps solely for the purpose of using the Engine Services via the Apps and (b) use the Engine Services solely for the purpose of providing features, services, customized content or offers to end users through the Apps. You may not use the Engine Services to build end user profiles for any reason, including targeting advertising. The SDK may incorporate third party technologies that are delineated and licensed to you on the terms shown in the text file entitled “Notices and Open Source Licenses” that accompanies the download of the SDK.
FACTUAL’S DATA COLLECTION AND USE
The SDK is designed to collect certain information from end users, including precise location data as defined by the Digital Advertising Alliance along with other information such as IDFAs and/or Ad ID, timestamp, latitude-longitude, altitude, end user check ins, device carrier, make and model, debugging and configuration data, etc. (such information as collected by the SDK, collectively, “Collected Information”). The SDK may return this information to Factual. Company hereby grants Factual an exclusive, perpetual, irrevocable, worldwide, royalty-free, transferable and sublicensable license to collect Collected Information, and to store, copy, modify, distribute, publicly display and/or perform, create derivative works of and otherwise use the Collected Information in and in connection with Factual’s products and services. Such products and services may include giving Factual’s clients, their customers and their sublicensees the ability to target advertising, personalize content, analyze the effectiveness of ad campaigns and personalization, optimize ad campaigns and other online or digital media, assess industry trends, and any other products or services offered by Factual to clients, directly or indirectly (e.g., through third parties such as demand side platforms and supply side platforms).
Factual complies with the EU-U.S. Privacy Shield Framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal information transferred from the European Economic Area to the United States. Factual will notify you if it ceases to maintain its participation in the Framework.
You must comply with all applicable laws and regulations, including but not limited to COPPA. You and the Apps must also comply with all applicable third party terms and guidelines, including the terms and guidelines of any distribution mechanism (e.g., any app store terms, etc.) and developer terms (e.g., iTunes Connect Developer Guides, requirements related to use of the Android advertising ID, etc.).
Without limiting any other obligation, to the extent applicable you will:
- Comply with the Digital Advertising Alliance (“DAA”) Self-Regulatory Principles (including the “Application of Self-Regulatory Principles to the Mobile Environment” and “Application of the Principles of Transparency and Control to Data Used Across Devices” and other updates to and DAA guidance on the foregoing) (collectively, the “DAA Principles”), the Network Advertising Initiative Code of Conduct (“NAI Code”) and the Principles of the European Interactive Digital Advertising Alliance, currently available at http://www.edaa.eu/european-principles/, as such set of principles may be amended from time to time (“EDAA Principles”).
- Comply with the European Directive on Data Protection 95/46/EC and ePrivacy Directive 2002/58/EC (as amended by Directive 2009/136/EC), including any legislative and/or regulatory amendments or successors thereto (including the General Data Protection Regulation), and any applicable implementing local legislation within the European Economic Area, as well as equivalent Swiss privacy laws (“EEAS Rules”).
- If Factual provides you with any data to which the EEAS Rules apply (“EEAS Data”), apply the EU-U.S. and Swiss-U.S. Privacy Shield Framework Principles issued by the U.S. Department of Commerce, located at https://www.privacyshield.gov (“Privacy Shield Principles”). For clarity, you agree to (a) use EEAS Data only for the purposes described in this Agreement; (b) notify Factual in writing upon your determination that it can no longer apply the Privacy Shield Principles to EEAS Data; and (c) upon such determination, cease use of EEAS Data or take other reasonable and appropriate steps to apply the Privacy Shield Principles to EEAS Data.
Factual may use your name and/or logo(s) in its descriptions of and lists of customers.
We may terminate your ability to use the Engine Services at any time for any reason or no reason, with or without notice. Additionally, your rights to use the Engine Services (including all licenses) will terminate immediately if you breach any of the Engine Terms. Promptly upon termination of your account, you will remove the SDK from your Apps. As to Apps already installed on end user devices, you will update such Apps as quickly as is technically feasible to remove the SDK, within the bounds set by any applicable third party terms (e.g., an app store).
By way of example, and not as limitation, you may not do any of the following:
- Reverse engineer, decompile, modify, adapt or create derivative works of the SDK (in whole or in part), except to the minimum extent required by applicable law.
- Attempt to access or receive the data stored by Factual on end user devices in connection with the Engine Services or collected by the SDK, or attempt to scrape, modify or copy the data.
- Alter the SDK to change the data the SDK collects and sends to Factual or prevent the collection and provision of any data to Factual.
- Sell, resell, redistribute, or sublicense the Engine Services or otherwise provide third parties with or charge third parties for access to the Engine Services.
- Install the SDK in any App directed at children or used by a large proportion of children, or where you have knowledge of someone’s age under 16 (or under age 13 when United States laws apply).
- Use the SDK in connection with any API key other than the API key provided by Factual for the Engine Services.
- Use the Engine Services in connection with anything that:
- is illegal, defamatory, discriminatory, libelous, deceptive, fraudulent, obscene, or offensive;
- will defame, abuse, harass, harm, stalk, threaten, or otherwise violate the legal rights (including the rights of privacy and publicity) of others;
- contains software viruses or other malicious code; or
- violates any third-party rights or agreement.
- Take any action that interferes or may interfere with the Engine Service, including but not limited to:
- deleting any copyright or proprietary notices;
- creating user accounts or location data by automated or fraudulent means;
- impersonating any person or entity; or
- using the Engine Services for any illegal purpose.
- Use the Engine Services in a manner that would violate laws prohibiting discrimination or to determine adverse terms and conditions of or ineligibility for employment, credit, health care treatment or insurance.
SERVICE MODIFICATIONS AND AVAILABILITY
Factual reserves the right to modify, charge for or discontinue any or all of the Engine Services at any time, for any or no reason, with or without notice. We may also schedule system downtime and unplanned system outages may occur. We do not guarantee that applications developed on a prior SDK will be compatible with future versions of the SDK.
Factual may provide updates to the SDK that require you to obtain App Store approval. In addition, Factual reserves the right to perform scheduled and unscheduled maintenance and to release unscheduled binary updates in order to address and fix unforeseen issues or improve the function of the SDK.
All of the information and data made available via the website www.factual.com and any other site Factual provides in connection with the Engine Services (“Site Data”) is provided solely to enable you to learn about Factual and the Engine Services. You are not licensed to store, copy, or use any Site Data for any other purpose.
As between the parties, you own all right, title and interest in and to the Apps, including any future developments and enhancements thereto, and Factual owns all right, title and interest in and to the Engine Services and any future developments and enhancements thereto. Each party reserves the right to continually evolve its services and technologies. All Factual trademarks, service marks, logos, and trade names (“Factual Marks”) are owned solely by Factual. All third-party trademarks, service marks, logos, and trade names are the property of their respective owners and their use within the Engine Services is not meant to convey any relationship with or endorsement by such third parties. Except as expressly authorized by Factual, you may not use or display any mark, name, trade name, or logo appearing within the Engine Services without the owner’s prior consent or other legal authorization. Except as explicitly granted in this Agreement, nothing in this Agreement grants one party any right, title or interest in the other party’s products, services, technologies or intellectual property, and each party reserves all rights. Factual shall not be prohibited from improving its services on the basis of general learning and know-how gained from the provision of Engine Services to you and Factual’s other partners. Factual may use any suggestions or feedback without accounting, attribution or compensation to you.
DISCLAIMERS, NO WARRANTIES
Factual provides the Engine Services “as is” and “as available.” To the fullest extent permitted by applicable law, Factual and its shareholders, subsidiaries, affiliates, officers, directors, employees, contractors, agents, representatives, business partners, vendors, clients, licensors, and advisors (“Factual Entities”) disclaim all warranties of any kind, whether express or implied, including the implied warranties of merchantability, fitness for a particular use or purpose, performance, accuracy, reliability and non-infringement. Among other things, the Factual Entities make no warranty that: (a) the Engine Services will meet your requirements; (b) the Engine Services will be available on an uninterrupted, timely, secure, or error-free basis; or (c) the information that may be obtained from the Engine Services will be accurate or reliable. Without limiting the foregoing, (i) the Factual Entities shall have no liability whatsoever for the unavailability of the Engine Services or for any loss of data or outages and (ii) under no circumstances shall the Factual Entities be responsible for any loss or damage, including property damage, personal injury or death, arising from or related to the Engine Services. Your failure to deploy updates may impact performance. This disclaimer of warranty constitutes an essential part of this Agreement.
LIMITATION OF LIABILITY
In no event shall the Factual Entities be liable to you or any third party for any lost profits or any indirect, consequential, exemplary, incidental, special, or punitive damages arising from or related to the Engine Services or your use of the Engine Services, even if the Factual Entities have been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein, the Factual Entities’ liability to you for any damages arising from or related to the Engine Services or your use of the Engine Services (for any cause whatsoever and regardless of the form of the action), will at all times be limited to the greater of $5 or the amounts you have paid to Factual for the Engine Services, if any. This limitation of liability inures to the benefit of any successor to the Factual Entities and, in each case, liability is limited to the fullest extent permitted by law. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you and you may also have other legal rights that vary from jurisdiction to jurisdiction.
These limitations of liability apply even if any remedy specified in these Engine Terms is found to have failed of its essential purpose.
Factual will indemnify, defend and hold harmless you, your officers, directors, employees and representatives from any liability or expense (including reasonable attorney’s fees) (“Liabilities”) from any third party claim that the SDK used in accordance with this Agreement infringes third party US intellectual property rights. You will indemnify, defend, and hold harmless Factual, its officers, directors, employees and representatives (“Factual Parties”) from any Liabilities from any third party claim arising out of or related to any data or information that you provide to Factual, your products or services (including Apps), or any alleged fact that would constitute a breach of this Agreement by you. Each party’s indemnification obligations are conditioned upon (a) the indemnified party providing the indemnitor with prompt written notice of any claim (provided that the failure to promptly notify will only relieve indemnitor of its obligation to the extent it can demonstrate material prejudice from such failure), (b) indemnitor having sole control and authority with respect to the defense and settlement of any such claim, and (c) the indemnified party cooperating fully with indemnitor, at indemnitor’s sole cost and expense. The indemnitor shall not, without the prior written consent of the indemnified party, agree to any settlement of any such claim that does not include a complete release of the indemnified party from all liability or that imposes any liability, obligation or restriction on the indemnified party. The indemnified party may participate with its own counsel, at its own expense.
- Factual shall have no obligation for claims arising from or related to (a) compliance with your specifications, (b) combination of the Engine Services with products or services not supplied by Factual, where the cause of action would not have arisen but for such combination, (c) adaptation or modification of the Engine Services, where the cause of action would not have arisen but for such adaptation or modification, (d) your failure to follow instructions provided by Factual which would have cured the cause of action, provided that following such instructions would not have caused you substantial additional cost, (e) use of the Engine Services other than as described in these Engine Terms, or (f) your continued use of a version of the SDK other than the most recently released version, where the cause of action would not have arisen if such most recently released version had been used. If any of the subsections above apply, you will indemnify, defend and hold harmless the Factual Parties from and against any Liabilities arising from such claims.
- If the Engine Services are held in a suit or proceeding to infringe any intellectual property rights or other rights of a third party, or Factual reasonably believes that it is likely to be found to do so, then Factual may, at its sole cost, expense and option, either (a) procure the right to continue using the Engine Services, (b) modify the Engine Services so that they become non-infringing, or (c) terminate your ability to use the Engine Services upon notice. Factual’s obligations as stated in this “Indemnity” section are your sole remedy and Factual’s sole liability arising out of or relating to such infringement claims.
Factual’s failure to exercise or enforce any right or provision of these Engine Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Engine Terms will be effective only if made explicitly, in writing and signed by Factual.
RELATIONSHIP OF PARTIES
These Engine Terms do not create any agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship. These Engine Terms are solely between you and Factual and are not for the benefit of any third party.
GOVERNING LAW AND JURISDICTION, ARBITRATION
These Engine Terms are governed by the laws of the State of California. You are responsible for complying with all applicable local laws, both within and outside the United States, including laws that would require you not to use the Engine Services. Any action arising under or related to these Engine Terms will be resolved by arbitration (and the parties hereby consent to personal jurisdiction) in Los Angeles County, California, in accord with the Commercial Dispute Resolution Procedures of the American Arbitration Association and, in the case of injunctive or provisional relief, the Rules for Emergency Measures of Protection. The arbitration will be decided by a single arbitrator whose decision will be final and binding and may be enforced in any court of competent jurisdiction. The prevailing party is entitled to reasonable attorneys’ fees and costs. The arbitration will be kept confidential except as required by law. Any claims arising under or related to these Engine Terms must be brought in the initiating party’s individual capacity and not as a plaintiff or class member in any class action or other similar proceeding.
The Engine Terms (including all policies, guidelines and rules applicable to the Engine Service that Factual posts on its website or otherwise provides or makes available) are the entire agreement between you and Factual relating to the subject matter herein and cannot be modified except in a writing signed by both parties, or by a change made by Factual as set forth above.