THESE TERMS OF SERVICE GOVERN YOUR USE OF APP.IO’S PRODUCTS AND SERVICES. BY ACCEPTING THESE TERMS OF SERVICE, YOU AGREE TO THESE TERMS OF SERVICE. IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, YOU MUST NOT ACCEPT THESE TERMS OF SERVICE AND MAY NOT USE THE PRODUCTS OR SERVICES.
We may modify these Terms of Service at any time without advance notice to You, and will communicate any such modification(s) to You within a reasonable period of time after effecting such modification(s) via e-mail to the address specified in your Account (as the term is defined herein) and/or on a public posting on http://blog.app.io.
These Terms of Service are effective between You and Us (each a "Party," and together, the "Parties") as of the date of You accepting these Terms of Service (the "Effective Date").
1.1 "App.io," "We," "Us," or "Our," means App.io Inc, a Delaware corporation doing business as App.io.
1.2 "App.io Platform" means App.io’s interactive mobile app testing and marketing tool that allows one’s customers to use mobile apps outside of the mobile apps native platform.
1.3 "App.io API" means App.io’s application programming interface and related information and documentation as it currently exists related to the App.io Platform.
1.4 "Applicable Law(s)" means federal, state, and local laws, rules, and regulations.
1.5 "Customer," "You" or "Your" means You.
1.6 "Customer Content" means the text, images, and other content You upload to the App.io Platform using the App.io API.
1.7 "Fee(s)" means the Subscription Fee(s) and fees for other Add-Ons (as the term is defined herein) purchased by the Customer.
1.8 "Intellectual Property" or "Intellectual Property Rights" means all inventions and/or works and any and all rights under U.S. and/or foreign patents, trade secrets, know-how, copyrights, and other industrial or intangible property rights of a similar nature; all rights pursuant to grants and/or registrations worldwide in connection with the foregoing and all other rights with respect thereto; all rights under applications for any such grant or registration, all rights of priority under international conventions to make such applications and the right to control their prosecution, and all rights under amendments, continuations, divisions and continuations-in-part of such applications; and all rights under corrections, reissues, patents of addition, extensions and renewals of any such grant, registration and/or right.
1.9 "Services" means the online functionalities provided by App.io and used by Customer under these Terms of Service. The Services may include, but are not limited to, the ability to integrate an app solution by leveraging the App.io API, the ability to share an app on Facebook, the ability to link an app directly to one or more app stores, and the provision of analytics on conversion rates, session times, and other metrics.
1.10 "Subscription" means Services purchased by You for use on a renewable basis as agreed upon between You and Us.
1.11 "Subscription Fee" means the fee for Customer’s use of the Services, as subscribed to by Customer.
1.12 "Third Party" means any entity, organization or individual other than App.io and You.
In order to access and use the App.io API, the App.io Platform, and the Services, You must complete the registration process (the "Registration Process") with App.io at https://app.io/signup or via another URL or mechanism as App.io may designate from time to time. The Registration Process includes, but may not be limited to, the requirement that You create an account ("Account"), which may include a unique username ("Username") and password ("Password"). When creating an Account, You must provide true, accurate, current, and complete information. You are solely responsible for the confidentiality, security, and use of Your Account, Username and Password, as well as for any use, misuse, or communications using one or more of them. You will promptly inform App.io of any need to deactivate an Account, a Username or Password. App.io reserves the rights to delete any Account and to delete or change Your Passwords and Usernames at any time and for any reason. App.io will not be liable for any loss or damage caused by any unauthorized use of Accounts, Passwords, or Usernames.
LICENSES AND USE OF THE APP.IO TECHNOLOGY
3.1 During the Term (as defined herein), App.io grants to You a limited, non-exclusive, non-transferable, and non-sublicenseable license to use the App.io API solely to allow You to access the App.io Platform in order to use the Services (all of the foregoing rights, collectively, the "License"). App.io retains all right, title and interest in and to the App.io API, the App.io Platform, and all improvements, modifications and derivative works therefore (collectively, the "App.io Technology"). This Agreement does not grant You any right to the App.io Technology, except for the limited license expressly set forth above. App.io may also make additional, optional add-on services and/or downloadable software available to You from time to time during the term of this Agreement (the "Add-Ons"). Add-Ons shall be subject to these Terms of Service and any additional terms as may be provided by App.io, and may incur additional Fees. App.io reserves the right to discontinue or terminate any Service(s) at any time, and will use commercially reasonable efforts to provide advance notice to You of any such termination or discontinuation.
3.2 You shall be solely and exclusively responsible for: (i) using reasonable efforts to prevent unauthorized access to or use of the App.io Technology or Services, and for notifying Us promptly of any such unauthorized access or use, (ii) using the App.io Technology and the Services strictly in accordance with Applicable Laws, and (iii) obtaining and maintaining all computer hardware, Internet access and other equipment or services needed to access and use the Services and all costs and fees associated therewith.
3.3 You will not: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the App.io Technology; (ii) modify, adapt, or translate the App.io Technology; (iii) make any copies of the App.io Technology; (iv) resell, distribute, or sublicense the App.io Technology; (v) make the App.io Technology or the Services available on a "service bureau" basis, or otherwise allow any Third Party to use or access the App.io Technology or the Services; (vi) remove or modify any proprietary marking or restrictive legends placed on the App.io Technology; (vii) use the App.io Technology or the Services in violation of any Applicable Laws or for any purpose not specifically permitted in these Terms of Service; (viii) upload, transmit, or otherwise make available any content that: (a) infringes any Intellectual Property Rights, right of publicity, or other proprietary rights of any Third Party, (b) is threatening, tortious, defamatory, libelous, indecent, obscene, pornographic, invasive of another’s privacy, or promotes violence, (c) discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information, or (d) promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age (all of the foregoing content restrictions hereinafter referred to as the "Content Restrictions"); (ix) interfering with, or attempting to interrupt the proper operation of, the App.io Technology or the Services, including through the use of any harmful code, device, software or routine, or access or attempt to gain access to any data, files, or passwords related to the App.io Technology or the Services through hacking, data mining; or any other means; or (x) take any action that imposes or may impose (in App.io’s sole discretion) an unreasonable or disproportionately large load on App.io’s technical infrastructure (all of the foregoing, the "Restrictions on Use").
3.4 App.io reserves the right to: (a) remove and/or delete any Customer Content from the App.io Technology that App.io believes in its sole discretion violates any of the Content Restrictions, and/or (b) refuse Customer’s access and/or use of any and all App.io Technology and Services if App.io believes in its sole discretion that Customer has violated any of the Restrictions on Use.
4.1 Subscriptions to paid Services are available via a number of plans with renewable terms of varying duration. Your Subscription will be automatically renewed in accordance with the plan you choose unless you cancel your Subscription before the end of the then-current term. All Subscription Fees are quoted in U.S. dollars, and all payments shall be made in U.S. dollars. App.io reserves the right to change the Subscription Fees at any time, and will use commercially reasonable efforts to provide advance notice to You of any such change.
4.2 You shall provide Us with valid and updated credit card information. You represent and warrant that you have the legal right to use any credit card(s) used to initiate any purchase. You authorize Us to charge any applicable Subscription Fees to your credit card. In the event your credit card information is found to be inaccurate, incomplete and/or not current at any time, App.io will notify you and you will be responsible for immediately updating the information in your Account. If we cannot charge your credit card for the applicable Subscription Fees five (5) days after such notification, we shall have the right to immediately terminate your Account and these Terms of Service.
TERM AND TERMINATION
5.1 The term of these Terms of Service will commence on the Effective Date and will continue thereafter until terminated as set forth below in accordance with this Section (such period until so terminated, the "Term"). Your Subscription will be automatically renewed at the end of each month unless you cancel your Subscription before the end of the then-current month.
5.2 You may cancel your Subscription at any time by providing App.io written notice. If You cancel Your Subscription before the end of the then-current month, You will be able to use the Services until the end of the then-current month, at which point the Services will be unavailable to You.
5.3 App.io has the right, in its sole discretion, to immediately terminate for convenience these Terms of Service for Customer for any or no reason at all (a "Termination").
5.4 In the event of Termination, Customer will immediately cease all access and use of the App.io Technology and the Services, and Customer’s Account may be deactivated or deleted. Unless Customer is permitted to do so by App.io in writing, Customer may not create a new account to use the App.io Technology or the Services after Termination.
5.5 The following provisions will survive any termination of these Terms of Service: 1, 4, 5, 6, 7.2, 7.3, 8, 9, and 10.
INTELLECTUAL PROPERTY; DATA
6.1 As between App.io and Customer, App.io shall own all right, title, and interest in and to the App.io Technology and the Services including, without limitation, all source code, object code, operating instructions, and interfaces developed for or relating to the same, together with all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, improvements, and derivative works thereof, and all Intellectual Property Rights therein (the "App.io Intellectual Property"). Customer will have no rights with respect to the App.io Intellectual Property other than those expressly granted under the License.
6.2 As between App.io and Customer, Customer shall own all right, title, and interest in and to the Customer Content and all Intellectual Property Rights therein. You hereby grant App.io a non-exclusive, worldwide, royalty-free license to use, reproduce, distribute, publish, publicly perform, publicly display, and otherwise exploit, in connection with App.io’s business or otherwise, the Customer Content and associated works, along with the right to excerpt, analyze, and index from the Customer Content and associated works. Notwithstanding the foregoing, in limited instances, App.io may provide You the option to designate certain Customer Content as "private" (the "Content Privacy Option"). In the event that You are given, and You exercise, the Content Privacy Option with respect to applicable Customer Content (the "Private Content"), App.io will not publically disclose such Private Content.
6.3 In the course of using the App.io Technology and Services, You may provide certain information and data to App.io (the "Customer Data"). You agree that you hereby grant App.io a non-exclusive, worldwide, perpetual, irrevocable, and royalty-free license to use the Customer Data for the purposes of analysis and aggregation, and that Customer Data that has been de-identified and/or aggregated may be shared with Third Parties.
REPRESENTATIONS AND WARRANTIES; DISCLAIMER
7.1 You represent and warrant that: (i) You are more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and that you have the full right, power, and authority to enter into these Terms of Service, to discharge its obligations hereunder, and to grant the licenses and rights granted hereunder, and (ii) You do and will continue to comply with all Applicable Laws.
7.2 YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE APP.IO TECHNOLOGY, THE SERVICES, AND OTHER MATERIALS PROVIDED HEREUNDER, ARE PROVIDED "AS IS" AND "AS AVAILABLE." APP.IO DOES NOT MAKE, AND YOU EXPRESSLY WAIVE, ANY AND ALL WARRANTIES EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, ABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. To the extent that a Party may not as a matter of Applicable Law disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such law.
LIMITATION OF LIABILITY
8.1 IN NO EVENT SHALL APP.IO BE LIABLE TO YOU OR ANY THIRD PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM YOU OR ANY THIRD PARTY) FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS, LOSS OF GOODWILL OR REPUTATION, BREACH OF PRIVACY OR SECURITY) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE, REGARDLESS OF WHETHER APP.IO KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF.
8.2 APP.IO’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, INDEMNITY, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO APP.IO IN THE ONE (1) MONTH PRECEDING ANY SUCH CLAIM.
8.3 CUSTOMER ACKNOWLEGES AND AGREES THAT THE LIMITATIONS ON LIABILITY IN THIS SECTION ARE REASONABLE AND THAT THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THESE TERMS OF SERVICE BETWEEN APP.IO AND CUSTOMER, AND THAT CUSTOMER HAS RELIED UPON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THESE TERMS OF SERVICE. THE REMEDIES PROVIDED TO CUSTOMER IN THESE TERMS OF SERVICE ARE EXCLUSIVE. THE LIMITATIONS ON LIABILITY IN THIS SECTION SHALL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS OF SERVICE IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Customer agrees to defend, indemnify, and hold harmless App.io, and its respective officers, directors, employees, and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including, but not limited to, attorney’s fees) arising from: (i) Customer’s use and access to the App.io Technology and the Services, (ii) Customer’s violation of any term of these Terms of Service, (iii) Customer’s violation of any Third Party right, including, but not limited to, any Third Party Intellectual Property Rights, (iv) Customer’s negligence or willful misconduct, and (v) Customer’s violation of any Applicable Law.
10.1 These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by Customer, but may be assigned by App.io without restriction.
10.2 These Terms of Service, and any disputes directly or indirectly arising from or relating to these Terms of Service, will be governed by and construed in accordance with the internal, substantive laws of the State of California, without regard to its conflict of laws principles.
10.3 The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in California for all suits, actions, or proceedings directly or indirectly arising out of or relating to these Terms of Service, and waive any and all objections to such courts, including but not limited to objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the jurisdiction of such courts in any suits, actions or proceedings arising out of or relating to these Terms of Service.
10.4 The rights and remedies of the Parties to these Terms of Service are cumulative and not alternative. No waiver of any rights is to be charged against any Party unless such waiver is in writing signed by an authorized representative of the Party so charged. Neither the failure nor any delay by any Party in exercising any right, power, or privilege under these Terms of Service will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. If any provision of these Terms of Service is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of these Terms of Service will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the Parties’ intent.