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NINJA METRICS

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Terms of Service

Acceptance of Terms

Welcome to Ninja Metrics. Ninja Metrics, through its patent protected Katana Social Analytics Engine (“Katana”), measures the value of social contributions in applications and games, provides detailed projections for the outcomes that matter to developers, and offers the tools to determine how effectively features facilitate engagement and social interaction. Accessing our services requires your acceptance of these Terms of Service (“TOS”) and establishes a valid enforceable agreement between you and Ninja Metrics (the “Agreement”). Please review these TOS and, if you are not willing to abide by these TOS, do not install or use any of our products or services. By accessing and using our services you are agreeing to these TOS, including any future modifications or changes to them which we reserve the right to make from time to time. It is your responsibility to stay abreast of any changes, which will be available on our web site (www.ninjametrics.com).

Description of Katana

Katana provides clearer insight into the health of social games and applications by going beyond simple historical reporting. Using patent pending, state-of-the-art machine learning algorithms, Katana provides detailed projections for the outcomes that matter to developers and the features, interactions, and mechanics that influence them. Ninja Metrics accumulates data on your individual users and then, through Katana, calculates the social influence one player has on other players in your system predicting the future value of every person in your system based on their actions, their social interactions, and their relative total network value.

Reports and Results

Ninja Metrics’ dashboard illustrates how individual features and mechanics affect outcomes - like who is spending, quitting, and sharing in your games and applications. It clearly illustrates positive and negative trends as well as their future impact. Each customizable result is viewable as a global trend, sortable cohort, or even down to the individual user. Trends and projections are available as interactive charts and heat maps along with options for exporting the data to external spreadsheets.

License

Ninja Metrics grants you a nonexclusive, limited, non-transferable, revocable, and non-sublicensable license to install, use, and access Katana for the purpose of developing and operating your mobile, web, and video game applications. Your use of Katana is subject to this Agreement and does not include: (i) any resale, lease, rental, assignment, or other transfer of rights; (ii) distribution, public performance, or public display; (iii) modification, revision, creation of derivative works from or otherwise making any derivative uses of or any information or content therein; (iv) decompilation, reverse engineering, or otherwise attempting to derive the source code for Katana or any other Ninja Metrics services; or (v) any use of Katana other than for its intended purpose. Any unauthorized use of Katana may also violate applicable laws, including, without limitation, copyright, trademark, and other intellectual property laws.

You also hereby agree that Ninja Metrics may use your company name, trademarks, service marks, and/or logos to identify you as a customer of Ninja Metrics in its marketing materials, press releases, publications, or websites.

Information Collection

Ninja Metrics collects, retains, analyzes, and publishes data collected through your use of Katana that reflects the characteristics and activities of end users of your applications. Ninja Metrics will not disclose to third parties any Personal Identifiable Information ("PII") derived from user data collected from your applications that is specifically attributable to you, your applications, or your customers. Ninja Metrics may use the data obtained from its access to this information in providing services to its customers, additional benchmarking services, enhancing the further development of Katana, and for academic research purposes.

Privacy Issues

You must have and appropriately post a privacy policy. That policy must (i) provide notice of your use of user identification technology that collects, uses, shares, and stores data about end users of your applications (by you or third parties such as Ninja Metrics) and (ii) contain an opt-out link for the data collection by your end users in such a manner that they can easily find it and opt-out of information tracking. If an end user opts-out, you must stop tracking data for that user or the device identified by the provided MAC address and/or device identifier going forward. You agree to obtain all necessary end user consents required by applicable law before you use Katana or any other Ninja Metrics services.

The services provided by Ninja Metrics are not intended for persons under the age of 13 and are not developed for or directed at children in any way. Ninja Metrics does not knowingly solicit or collect any Personal Identifiable Information ("PII"), directly or indirectly through our customers, of anyone under 13 years of age. You agree that you will not use Katana or any other Ninja Metrics service in connection with any application labeled or described as a "Kids" or "Children" application and will not use any Katana, or any other Ninja Metrics service (i) in connection with any application, advertisement, or service directed towards children, or (ii) to collect any personal information from children. If you learn that anyone under 13 is using your application or game, you must provide a method for them to opt-out of any data collection and immediately delete their information. You agree that you will, at all times, abide by all policies, requirements, and procedures as stated in the Federal "Child Online Privacy Protection Act" (COPPA), including all updates and revisions, and any other similar applicable governmental laws or regulations.

Representations and Warranties

You represent and warrant:


that you are the owner of each application you designate in connection with the use of Katana and any other Ninja Metrics services or that you are legally authorized to act on behalf of the owner of such application for the purposes of this Agreement;

that you have all necessary rights, power, and authority to enter into this Agreement, to perform the acts required of you hereunder, and to permit Ninja Metrics to perform the services contemplated under this Agreement;

that your use of Katana and any other Ninja Metrics services, the delivery and performance by you of the terms and conditions under this Agreement, and, if applicable, Ninja Metrics' use of the data received will not conflict with or violate any agreement or other instrument with a third party applicable to you or otherwise infringe upon the rights of any third party;

that you have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including, without limitation, any relevant data protection or privacy laws);

that you will comply with and have any and all consents, authorizations, and clearances from end users of your applications to allow Ninja Metrics to collect, store, and use user data from your end users; and

that California does not apply Sales Tax to our services but in the event that another jurisdiction does subject our services to a Sales or Use tax, it is your responsibility to pay the tax directly to that authority;

that you will at all times comply with all applicable Ninja Metrics policies.

Confidential Information

"Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and which, by its nature under the circumstances, would reasonably be considered confidential. Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes publicly known which is already in the receiving party's possession prior to disclosure by a party, or which is independently developed or collected by the receiving party without the use of Confidential Information. Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation, or court order. Upon termination of this Agreement, the parties will promptly return or destroy all Confidential Information and, upon request, provide written certification of such.

Indemnity

You agree to indemnify, hold harmless, and defend Ninja Metrics, its parents, subsidiaries, affiliates, officers, agents, and employees from and against any and all third party claims and all related losses, expenses, liabilities, costs (including, without limitation, attorneys' fees and other litigation expenses) or damages incurred by any and all of them arising out of or relating to your use of Katana and any other Ninja Metrics services, breach of this Agreement, violation or infringement of any third party intellectual property or proprietary rights, fraud, gross negligence, or bad faith. Ninja Metrics reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.

Disclaimer of Warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

YOUR USE OF KATANA ARE AT YOUR SOLE RISK. KATANA ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. NINJA METRICS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

NINJA METRICS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS MAKE NO WARRANTY THAT (i) KATANA WILL MEET YOUR REQUIREMENTS; (ii) KATANA WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF KATANA WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY SERVICES OR INFORMATION OBTAINED BY YOU THROUGH KATANA WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF KATANA IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NINJA METRICS, KATANA, OR ANY OTHER NINJA METRICS SERVICES OR SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.

Limitation of Liability

IN NO EVENT WILL NINJA METRICS, ITS SUBSIDIARIES, AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY UNDER ANY THEORY FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES; LOST INCOME, REVENUE OR PROFITS; LOST OR DAMAGED DATA; OR OTHER COMMERCIAL OR ECONOMIC LOSS ARISING OUT OF THIS AGREEMENT OR YOUR USE OF KATANA OR ANY OTHER NINJA METRICS SERVICES, EVEN IF NINJA METRICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE.

Export Controls

You may not ship or export Katana and any other Ninja Metrics services to any country in violation of the U.S. Export Administration Act (or any other law governing such matters), and you will not utilize and will not authorize anyone to utilize Katana in violation of any applicable law. Katana and any other Ninja Metrics services may not be downloaded or otherwise exported into (or to a national or resident of) any country to which the U.S. has embargoed goods, or to anyone or into any country prohibited by applicable law from receiving it.

Modifications to and Termination of the Services

Ninja Metrics reserves the right to modify Katana at any time. Ninja Metrics also reserves the right to terminate your access to Katana or any other Ninja Metrics services.

Waiver

A waiver of any provision of this Agreement on any specific occasion will not be deemed to be a waiver of that provision of this Agreement on any other occasion or a waiver of any other part of this Agreement. No such waiver will constitute a waiver of any other provision(s) or of the same provision on another occasion.

Severability

If a court of competent jurisdiction holds any term, covenant, or restriction of these TOS or this Agreement to be illegal, invalid, or unenforceable in whole or in part, the remaining terms, covenants, and provisions will remain in full force and effect and will in no way be affected, impaired, or invalidated. If any provision in this Agreement is determined to be unenforceable in equity because of its scope, duration, geographical area, or other factor, then the court making that determination will have the power to reduce or limit such scope, duration, area, or other factor, and such provision will be then enforceable in its reduced or limited form.

Choice of Law and Binding Arbitration

This Agreement and its interpretation, construction, and effect shall be governed by and in accordance with the laws of the State of California, USA, without regard to choice of law rules, and U.S. Federal Law with respect to any intellectual property matters. Any controversy or claim rising out of or relating to this Agreement, the breach, or claimed breach of this Agreement shall be resolved through binding online arbitration in accordance with the rules of net-ARB.com. The costs of arbitration shall be shared equally between the Parties and later apportioned by the arbitrator. The arbitrator's decision will be binding and may not be appealed. A judgment of a court having jurisdiction may be entered upon the arbitrator's final award.

Entire Agreement

These TOS constitute the entire agreement between you and Ninja Metrics and governs your use of Katana and any other Ninja Metrics services, superseding any prior agreements between you and Ninja Metrics with respect to Katana and any other Ninja Metrics services.

Survival

The terms and conditions contained in this Agreement that by their use and context are intended to survive the performance hereof by the Parties, including but not limited to the provisions relating to Indemnity, Disclaimer of Warranties, and Limitation of Liability, shall so survive the completion of the performance, cancellation, or termination of this Agreement.

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