Welcome to Appdome!
Below are the terms upon which AppDome, Inc., and our affiliates (together, “Appdome,” “us,” “our” or “we”) provide users (each a “User,” “you” and “your”) our service.
Please review these terms carefully.
THIS AGREEMENT IS EFFECTIVE AS OF THE DATE YOU CLICK THE “ACCEPT” BUTTON (OR ANY SIMILAR BUTTON, CHECK BOX OR LINK AS MAY BE DESIGNATED BY APPDOME TO SIGNIFY YOUR ACCEPTANCE HEREOF). YOU REPRESENT AND WARRANT THAT: (I) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (II) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH APPDOME; AND (III) YOU HAVE THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE LEGAL ENTITY THAT YOU NAMED AS THE USER (“ENTERPRISE”), AND TO BIND THAT ENTERPRISE TO THIS AGREEMENT.
THE TERM “YOU” REFERS TO THE INDIVIDUAL THAT USES OR THE ENTERPRISE ON WHOSE BEHALF THE INDIVIDUAL USES THE SERVICE, AS APPLICABLE, AND AS IDENTIFIED AS THE USER WHEN AN ACCOUNT IS CREATED THROUGH OUR WEBSITE AT www.appdome.com (THE “SITE”) OR THE PLATFORM AT fusion.appdome.com (THE “PLATFORM”).
ACCEPTING THE TERMS OF THIS AGREEMENT IS A REQUIRED CONDITION TO PROCEEDING WITH ANY USE, DOWNLOAD, INSTALLATION AND USE OF ANY SERVICES PROVIDED BY OR THROUGH US. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT OR IF YOU DO NOT HAVE THE LEGAL AUTHORITY TO BIND THE APPLICABLE ENTERPRISE, CLICK THE “DO NOT ACCEPT” BUTTON OR DO NOT ACCESS OR USE OUR SERVICE.
SECTION 26 OF THESE TERMS CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, IT INCLUDES AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO FINAL AND BINDING ARBITRATION. YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
We are excited to provide our services to you!
Appdome, through its automated mobile integration platform located at fusion.appdome.com (the “Platform”) and its website located at www.appdome.com (including any and all associated sites, the “Sites” and together with the Platform, the “Service”) offers you the ability to integrate mobile applications, services and tools.
Using our Service is meant to be fun, creative, productive and enjoyable for everyone. Bottom line, we want you to enjoy using our Service!
2. Using Our Service
Our goal is to make our services easy to use and useful to you!
Our Service is available to a wide range of eligible persons, including mobile developers, mobility professionals, mobile app owners, and independent software vendors (“ISVs”) and mobile solution vendors (“MSVs”).
3. Creating an Account
To take full advantage of the features and capabilities of our Service, you must create an account with us. Until you create an account, your access to our Service will be limited to what is made generally available to the public.
When you create your account, you agree to provide us with account information that is accurate and current at all times. When you create an account, you will create and we will provide you with unique credentials (a “User ID”) on our Service. Please use the User ID we provide you to access our Service. We may request that you verify your identity, the enterprise you represent, or that you are a human being through one or more means, including sending you an email verification and/or asking you to provide a telephone number to which we’ll send a verification code for you to enter into our Site.
You are responsible for any activity that occurs on your account. No other person is authorized to use the User ID we assign to you to access our Service. You are responsible for preventing unauthorized use of the User ID we assign to you. Please protect your UserID. Notify our Support Team immediately if you become aware that your User ID is being used by someone other than you.
4. How Our Services Work
Our Service consists of three (3) parts.
a. The AppFusion Platform. The first part of our Service is the Platform, which provides you with a stateful, cloud-based workspace to create integrated mobile experiences for your end users (“End Users”). Using the Platform, you can add (“Upload”), select, configure and automatically integrate third party services (“Fuse”), sign and deploy any number of mobile applications (individually a “Mobile App” and collectively “Mobile Apps”). The primary purpose of the Platform is to enable you to use our proprietary Fusion technology to combine Mobile Apps with a growing range of mobile services, mobile solutions, mobile SDKs and other tool sets, including those created by us (collectively, “Mobile Services and Tools” or “Mobile Services or Tools”) across a variety of categories available on our Service.
b. The AppFusion Adapter. The second part of our Service is our proprietary and automated technology that adds a unique set of software code to Mobile Apps (an “AppFusion Adaptor”) based on User choice. The AppFusion Adapter is created by us and generated from the selections you make on the AppFusion Platform. For each Mobile App you integrate on the AppFusion Platform, the AppFusion Adapter manages the interactions between the Mobile App and the Mobile Service or Tool you elected to Fuse to your app. Each Mobile App that is Fused with a Mobile Service or Tool (a “Fused Mobile App”) contains an AppFusion Adapter which enables the use of the Mobile App with that Mobile Service or Tool.
c. The Fusion Catalogue. The third part of our Service is our Fusion Catalogue, which is designed to allow ISVs and MSVs to make their Mobile Apps, Mobile Services and Tools accessible by you, including allowing you to quickly access the Mobile Apps developed by our ISV Users, and Fuse such Mobile Apps with the Mobile Services and Tools of our MSV Users. Through our Fusion Catalogue, ISVs and MSVs are able to provide their Mobile Apps, Mobile Services and Tools to you.
a. We offer a subscription-based Model. Our Service is provided to you on a per use, term based, subscription basis. Your subscription is unique to you, your business and your activities on the Site. You are solely responsible for any fees associated with your subscription.
b. User Account Types. If you are an individual, corporate, or enterprise User, we offer multiple account types for you to use of the Service. The current description of each individual, corporate and enterprise account types is available on our Site. We also have accounts for ISVs (i.e., commercial app publishers designated as “Publisher” on our Service) and for mobile application development shops that build work for hire apps for others (designated as “PRO” accounts on our Service). Depending on the account type you choose, your subscription may be free or may be fee-based and may be designed to accommodate multiple use cases, administrators, features, end users and integration services. You are solely responsible for selecting the account type and services that meets your mobile integration needs. We assume no responsibility for the choices you make using our Service.
c. ISV/MSV Accounts. If you are an ISV (i.e., App Pubisher) or MSV (e.g., mobile SDK provider), you may use the Service free of charge for publishing, testing and verifying for use the Fusing of your app or service, with any app, solution or service available on our Service. Other rights and responsibilities between you and us may be set forth in an agreement between you and us or in a program that we may offer you from time to time.
c. Service Level Agreements. We will make our Service available to you in accordance with the Service Level Agreement (“SLA”) associated with the account or program you choose, as such SLA is published on our Site from time to time, or the SLA agreed to between you and us in a separate agreement between us. Please consider the SLA in making your account type decisions. We may update the SLA for your account type from time to time.
d. User and Usage Limitations. Certain of our subscriptions may include usage, user, audience or instance based limitations. It is your responsibility to monitor and manage use of our Service and use of the Mobile Apps Fused through our Service. As part of our Service, we provide you dashboard functionality that assists you in monitoring the use of your Fused Mobile Apps. Any error in our dashboard functionality (e.g., displaying less than the actual use) does not relieve you of your responsibility to pay for your actual use. If you exceed any subscription or contractual limit, we may work with you to reduce your usage so that it conforms to the applicable limit. If we or you are unable, or if you are unwilling, to reduce usage to the applicable limit, you agree to pay any amounts required for your actual use promptly upon presentation of an invoice for any such excess usage. Under no circumstance will we disable or suspend your access to the Service without first notifying you and giving you a reasonable time to cure the deficiency, either in the form of reducing your activity on the Service or through payment of additional fees.
e. Additional End User Fees for ISVs and MSVs Offerings. Some of the Mobile Apps, Mobile Services or Tools offered by our ISV Users and MSV Users on our Service may require additional fees to implement, Fuse or use. For example, an MSV User may make its SDK available through our Service and charge a fee based on your access, fusing the SDK to your Mobile Apps, or the use of such Mobile Services or Tools by your End Users. Likewise, an ISV User may charge a fee to users that wish to Fuse the ISV’s Mobile App with one or more Mobile Services or Tools on our Service. In this case, the provider of the SDK or Mobile App may establish a fee for any integration performed on our Service. In some cases, we will provide payment options directly on our Service, or we may ask that you contact us or the specific ISV or MSV for contracting options. You are solely responsible for paying any fees charged by an ISV or MSV for the selected software or service before using it. Notwithstanding the foregoing, and pursuant to Section 5(c) above, ISVs and MSVs may test and validate AppFusion free of charge.
6. Permitted Use
Our Service, AppFusion Adaptors, and the information and content available on the Service, excluding User Content as defined in Section 10(a) (collectively, the “Appdome Properties”) are protected by copyright laws throughout the world. Subject to the terms and conditions in this Agreement, Appdome grants you a limited license to reproduce portions of the Appdome Properties to store and retrieve Mobile App files and binaries, mobile integration work in process, use any resource in our knowledge center, and create as many Fused Mobile Apps as your account type allows (“Permitted Uses”). Certain services, such as our mobile security services, are provided to you free of charge. Others, like those provided by ISVs or MSVs, may involve a fee. During the term of your subscription, you will have access to and may use our Service, including the Platform, Fusion and the Fusion Catalogue, all as a non-exclusive, term-based licensee in any way that we make generally available to Users with the account type you have selected.
7. Licenses Granted
a. License to Use the Service. Subject to the terms and conditions described in this Agreement, you are granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for the Permitted Uses.
b. Licenses to Use the AppFusion Adapter. Each time you Fuse a Mobile App with a Mobile Service or Tool, you are using our proprietary Fusion technology and generating an AppFusion Adapter for use with your Mobile App. Subject to your compliance with the terms of this Agreement, including the payment of any applicable fees, we grant you a non-exclusive, non-transferable, freely revocable, right and license to use each AppFusion Adapter, including using our Fusion technology to Fuse your Mobile Apps, incorporating the AppFusion Adaptor in your Fused Mobile App, to reproduce the AppFusion Adaptor as incorporated in the Fused Mobile App, to display Fused Mobile Apps, to deploy Fused Mobile Apps, and otherwise to perform the actions necessary to Fusing and making use of your Mobile Apps with other services through our Service. The foregoing license includes the license and right of your End Users to download, install and use copies of your Fused Mobile Apps, including the AppFusion Adapter, on their devices.
c. Additional licenses from ISVs and MSVs to You. On our Service, you may be authorized or allowed to access ISV User’s Mobile Apps and MSV User’s Mobile Services and Tools via our Fusion Catalogue or other means. You agree and acknowledge that the Mobile Apps, Mobile Services, and Tools made available through our Service are the exclusive property of the ISV or MSV providing them. Use of such Mobile Apps, Mobile Services, and Tools is governed by the license agreements provided by the ISV or MSV, respectively. Notwithstanding that, and subject to your compliance with the terms of this Agreement, including the payment of any applicable fees, our ISV Users grant you a non-exclusive, non-transferable, right and license to Fuse their Mobile Apps with Mobile Services and Tools, to display such Fused Mobile Apps, to deploy such Fused Mobile Apps, and to otherwise perform the actions necessary to Fusing and making use of their Mobile Apps as fused with other services. The foregoing license includes the license and right of your End Users to download, install and use such Fused Mobile Apps on their devices.
d. Additional licenses from You to Us. On our Service, you may upload Mobile Apps created by you and, provided you comply with the other provisions of this Agreement, Mobile Apps created by others (together, “Your Mobile App(s)”). When you upload Your Mobile App(s) to our Service, you grant us a worldwide, non-exclusive right and license to: save, copy, host, and display Your Mobile App(s) on our Service; in the case of testing our Service, to perform and use Your Mobile App(s) in combination with Mobile Services and Tools made available on our Service; in combining features and services to Your Mobile App(s) selected by you or others, to create derivative works by Fusing Your Mobile App(s) with Mobile Services and Tools on our Service (“Your Fused Mobile Apps”); and, so that you can use Your Fused Mobile Apps, to download or distribute Your Fused Mobile App(s) and to deploy them using our Service; in all cases, as directed by you and as reasonably necessary for us to provide the Service to you. By Uploading Your Mobile App to our Service, you are consenting to use of Your Mobile App on the Service.
e. Reservation of Rights. Subject to the limited licenses granted herein, neither you nor we acquire any right, title or interest from anyone in or to any intellectual property of the other. All right, title, and interest in and to the Service (excluding User Content) is and will remain the exclusive property of Appdome and our licensors. We reserve all rights not expressly granted herein.
8. Additional Terms for ISVs and MSVs
Thank you for listing your Mobile Apps and/or Mobile Services and Tools with us.
a. Note to ISV Partners. We care deeply about our ISV Users and the Mobile Apps you provide through our Fusion Catalogue (“ISV Mobile App(s)”). By making your ISV Mobile App(s) available on our Service, you are doing so solely for the purpose of allowing others to integrate your ISV Mobile App(s) with Mobile Services and Tools, including those provided by our MSV Users, using Fusion and distributing such Fused Mobile Apps to their End Users. In order to make your ISV Mobile App(s) accessible on our Service, you grant us the right to list, display, promote, store, copy, combine and disseminate the ISV Mobile App(s) on our Service, including your company name, application name, application description, application binary, version number, and any other information or content that you provide to us regarding the ISV Mobile App (collectively, “ISV Content”), and solely as necessary to generate an AppFusion Adapter associated with your Mobile App, to create derivative works in connection with Fusion choices selected by other Users of the Service.
b. Note to MSV Partners. We care deeply about our MSV Users and the Mobile Services and Tools you provide through our Fusion Catalogue. By making your Mobile Services or Tools available on our Service, you are doing so solely for the purpose of allowing others to Fuse their Mobile Apps or ISV Mobile Apps with your Mobile Services or Tools using Fusion and distributing such Fused Mobile Apps to their End Users. In order to make your Mobile Services or Tools accessible on our Service, you grant us the right to list, display, promote, store, copy, implement and disseminate your company name, solution name, solution description, binaries, software development kits (SDKs), APIs, version numbers, and any other information or content that you provide to us regarding your Mobile Services and Tools (collectively, “MSV Content”), and solely as necessary to generate an AppFusion Adapter associated with you Mobile Services and Tools, to create derivative works in connection with Fusion choices selected by other Users of the Service.
c. We are not an AppStore. We acknowledge and you agree that we are not a replacement or alternative to industry standard distribution channels, including Apple’s App Store, Google Play, or enterprise app distribution sites (together, “AppStores”).
(1) If you are an ISV, you agree and acknowledge that Fused Mobile Apps may be distributed via AppStores, solely with our consent and solely in compliance with this Agreement. You are not required to distribute your Fused Mobile Apps on any particular AppStore by using our Service.
(2) If you are an MSV, you agree and acknowledge that Mobile Apps Fused with your Mobile Services or Tools may be distributed via AppStores, solely with our consent and in compliance with this Agreement. You are not required to distribute your Mobile Services or Tools on any particular AppStore by using our Service.
d. Failure to Conform to AppStore Terms.
(1) If you are an ISV, in the event of any failure of Your Mobile App to conform to any applicable terms, conditions or restrictions set forth in any AppStore, after it has been Fused with any Mobile Service or Tool available on our Service, you agree to promptly notify us and provide us with reasonable assistance in resolving any such failure. We agree to work diligently with you to resolve any such failure, including supporting any joint customers we may have.
(2) If you are an MSV, in the event of any failure of any Mobile App Fused with your Mobile Services or Tools to conform to any applicable terms, conditions or restrictions set forth in any AppStore, you agree to promptly notify us and provide us with reasonable assistance in resolving any such failure. We agree to work diligently with you to resolve any such failure, including supporting any joint customers we may have.
e. Support. You and we acknowledge that, as between you and us, we will provide Tier 1 support to Users of our Service who Fuse services to apps, including chat support during working sessions on the platform, knowledge base and other online support tools. You agree that we are not responsible for responding or addressing any condition, claim or experience that related to the native features or functionality of your ISV Mobile App or your Mobile Services or Tools. No course of dealing or business activity will be used or interpreted to imply or impose any such responsibility on us. We acknowledge that you are not responsible for responding to or addressing any condition, claim or experience that relates to Fusion, the MIW Platform or our Service. No course of dealing or business activity will be used or interpreted to imply or impose any such responsibility on you.
f. Third Party Beneficiary. You and we acknowledge and agree that you are a third party beneficiary of this Agreement. You acknowledge and agree that this Agreement is concluded between you and every other participant on our Service, including you, severally (not jointly or together as a class).
Uploading a mobile application or MOBILE SOLUTIONS AND TOOLS TO THE SERVICE IS YOUR consent to US to Fuse the USER requested service, solution and application.
9. Representations in All Activities
At registration, and each time you use the Service, including uploading a Mobile App to your account, uploading a Mobile App, Mobile Service or Tool to our Fusion Catalogue, or creating a Fused Mobile App, you represent and warrant that you are authorized to perform the action taken; you own, control or manage the Mobile App, Mobile Service or Tool you Uploaded; you are capable of entering into and forming legally binding contracts; and you have the financial ability to complete the requested transaction. You represent and warrant that Fusing the Mobile App with the Mobile Service(s) or Tool(s) complies with all laws, rights and agreements applicable to each, to you, to the Mobile App, the Mobile Service or Tool and to the Fusion.
a. User Content. When you use our Service, including uploading Mobile Apps and creating content such as Fused Mobile Apps (and versions thereof), information we obtain about your mobile integration projects, mobile solution and mobile service selections, adding information about you to your account and profile, creating Fusions, Fusion Sets, your Fusion history, discussion posts, service requests, and other content created through your use of our Service, you are creating content that is unique to you (collectively, “User Content”). You are solely responsible for the User Content you Upload or create on or through our Service. We do not claim ownership in any User Content and we assume no responsibility for such User Content. However, when you post or publish your User Content on the Service, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display your User Content (in whole or in part) worldwide and/or to incorporate it in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in your User Content. Please remember that other Users may search for, see, use, modify and reproduce any of your User Content that you submit to any “public” area of the Service.
b. License to Your User Content. When you provide User Content to our Service, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub licensable (through multiple tiers) right to exercise any and all copyright, trademark, publicity, and database rights (but no other rights) to your User Content in connection with providing the Service, including in any media known now or in the future as reasonable for providing and promoting our Service. The foregoing right includes, but is not limited to, the right use, reuse, reproduce, copy, distribute, prepare derivative works produced via App Fusion, display and perform such User Content as permitted through Appdome and our Service functionality, currently or in the future. In addition, you represent that you own or have the necessary licenses, rights, permissions, and consents to use and authorize Appdome to use any and all Content submitted by you.
c. Appdome Properties. Except with respect to User Content, you agree that Appdome and its suppliers own all rights, title and interest in the Service. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service, or the AppFusion Adaptors.
a. Fee Schedule. A current list of fees (“Fee Schedule”) is available at all times on our Site. For any existing customer, we will not raise fees listed in the Fee Schedule during the subscription term and, in connection with any renewal term, will provide at least thirty (30) days’ notice of a change in the Fee Schedule for such changes to be effective during the renwal term.
b. General Purpose: Sale of Service, not Software. The purpose of this Agreement is for you to secure access to the Service. All fees set forth within and paid by you under the Agreement shall be considered solely in furtherance of this purpose without a right of offset or refund. In no way are the fees paid by you considered a payment for the sale, transfer, acquisition, license or use of Appdome software, including the AppFusion Adaptors, beyond your subscription term.
c. Payment. If applicable, you agree to pay the fees associated with your account and your activities on the Service in accordance with the Fee Schedule in effect at the time a fee is due and payable, within thirty (30) days of the receipt of an invoice (email acceptable). In many cases, we charge for our Service based on the number of Instances of a Fused Mobile App that your End Users install on their mobile devices. For purposes of this Agreement, an “Instance” (or “App Instance”) is a single copy of any AppFusion Adaptor that is installed (loaded into memory) and activated on any device. "Multiple instances" means that more than one copy of an AppFusion Adaptor has been installed and activated, either on the same device or on multiple devices. This means a single End User and/or a single device can have Multiple Instances (i.e. multiple copies of an AppFusion Adaptor installed and activated). Each App Instance creates a separately billable event and is separately licensed. There may be several, separate AppFusion Adaptors Fused with several different Mobile Apps that reside on a single device of a single End User. Each such AppFusion Adaptor is separately licensed, and when activated, creates a separate billable event towards the account.
d. Payment Provider. To access certain parts of our Service, individual or corporate end users may provide us with valid credit card (VISA, MasterCard, or any other issuer accepted by us) or PayPal account (the “Payment Provider”) as a condition to signing up for our Service. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement to determine your rights and liabilities. By providing us with your credit card number or PayPal account and associated payment information, you agree that we are authorized to immediately invoice your account for all fees due and payable to us and that no additional notice or consent is required. You agree to immediately notify us of any change in your billing address or the credit card or PayPal account used for payment hereunder.
e. Taxes. Our fees are net of any applicable Sales Tax. If any payments under this Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to us, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Appdome for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or such evidence that you have paid all applicable taxes. For purposes of this Agreement, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Appdome is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
f. Withholding Taxes. You agree to make all payments of fees to Appdome free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Appdome will be your sole responsibility, and you will provide Appdome with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
g. Promotional Events. We may choose to temporarily change the fees for our Service for promotional events (for example, free promotional periods) directed towards new users, new services and new uses, and such changes are effective when posted as a temporary promotional event for the new users, new services or new uses on our Service. Prior to your purchase, the Fee Schedule may change from time to time. Any changes or additions to our Fee Schedule are effective immediately unless we otherwise notify you.
h. Additional Payment Terms. Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees and applicable taxes associated with our Service in a timely manner using a valid payment method. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms, including charging other payment methods on file or retaining collection agencies and legal counsel.
12. Free Trials
a. Participation in Free Trials. You may be offered the opportunity to participate in free trials. If you register for a free trial on our Service, we will make one or more services available to you on a trial basis free of charge (“Trial Services”) until the earlier of: (a) the end of the free trial, (b) the start of your purchased subscription for the trial service, or (c) termination of the free trial by us, the ISV or MSV for any reason (in each case, in its sole discretion). Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are “Supplemental Terms” and are incorporated into this Agreement by reference and are legally binding.
b. Disclaimer of Warranties; Effect of Termination of Free Trial. ANY MOBILE APP OR OTHER USER CONTENT YOU ENTER INTO OUR SERVICE, AND ANY FUSIONS MADE BY OR FOR YOU DURING YOUR FREE TRIAL WILL BE UNAVAILABLE AT THE END OF THE TRIAL PERIOD UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SERVICE COVERED BY THE TRIAL BEFORE THE END OF THE TRIAL PERIOD. DURING ANY FREE TRIAL THE TRIAL SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. You agree that we have no liability for any harm or damage arising out of or in connection with Trial Services.
13. Beta Services
a. Use of Beta Services. We are constantly innovating and expect to provide you with access to new services and features. From time to time, we may make Beta Services available to you at no charge. You may choose to try such Beta Services or not in your sole discretion. Beta Services are intended for evaluation by you and to test potential services that may or may not be added to our Service. Beta Services are not intended for production use, are not supported, and may be subject to additional terms. Any such terms are “Supplemental Terms” and are incorporated into this Agreement be reference and are legally binding.
b. Disclaimer of Warranties; Termination of Beta Services. We may discontinue Beta Services at any time in our sole discretion and we make no commitment to release a production version of any Beta Service we make available on the Service. THE BETA SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. You agree that we have no liability for any harm or damage arising out of or in connection with a Beta Service.
14. Prohibited Activities
While we are excited that you have elected to use our Service, you understand that there are prohibitions that restrict your use of the Service, and you agree that you will not:
- use the Service for any purposes other than the Permitted Purposes;
- attempt to use our Service to Fuse information, data, text, music, sound, photographs, graphics, video, messages, tags, applications, services or other materials (“Content”) of third parties from whom you have not purchased a license;
- add, Fuse, sign or distribute Content or request items that violate contracts, licenses, laws or third party rights;
- post Content that is false, inaccurate, misleading, defamatory, or libelous (including personal information, slurs, and personal attacks) or that violates any right of publicly or privacy of any person or entity;
- use fake accounts, duplicate accounts, or other means to circumvent or manipulate our Service or the fees owed to AppDome, ISVs or MSVs;
- distribute viruses or use technologies that may harm Appdome, you, or the interests or property of Appdome, ISVs or MSVs;
- take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
- harvest or collect information about you, including using any robot, spider, scraper or other automated means or any manual process for any such purpose;
- attempt to capture, gather, collect, copy, reproduce, modify or reverse engineer any binaries (including AppFusion Adaptors), SDKs or other property of you, ISVs, MSVs or Appdome;
- use or attempt to use our Services after your account has been suspended or terminated;
- post Content or request items that are offensive, inflammatory, illegal, or that promote or glorify bullying, hatred, violence, intolerance, or promote organizations with such views;
- interfere or attempt to interfere with the proper working of our Services or tools, or any activities conducted on or with our Services;
- bypass any measures we may use to secure, prevent or restrict access to our Service.
Appdome and the Appdome community must work together to keep our Services trustworthy, safe and enjoyable for everyone. Please report problems and policy violations to us by contacting our Support Group.
You may not access the Services if you are our direct competitor, except with our prior written consent. In addition, You may not access our Service solely for purposes of monitoring our availability, performance or functionality, or for any other benchmarking or competitive purposes.
a. User Termination. You may request termination of your account at any time and for any reason by sending an email to our Support Group.
b. Appdome Termination. Without limiting other remedies, we may in our sole discretion limit, suspend or terminate this Agreement and your account, prohibit access to our Service, suspend or remove your Fused Mobile Applications, remove User Content Uploaded by you, cancel and remove administrators from your account, reduce your account status, and take other technical and legal steps to ensure compliance with this Agreement and/or to reduce any adverse impact on the quality of our Services. You agree that the grounds for such limitation, suspension or termination may include (i) extended periods of inactivity, (ii) violation of the of this Agreement, (iii) fraudulent, harassing or abusive behavior, (v) failure to pay for our Service or use of ISV or MSV services or solutions provided through our Service, or (v) behavior that is harmful to other Users, third parties, the community ethos of our Service or our business interests. In the event that we terminate your account, you may not register for the Services again without our express permission. If you believe that any action has been taken against your account in error, please contact our Support Group.
c. Investigation of Suspected Violations. We reserve the right to investigate suspected violations of this Agreement or illegal and inappropriate behavior through the Service. If, as a result of the investigation, we believe that criminal activity has occurred, we reserve the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. We are entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Appdome Properties, including your User Content, in our possession in connection with your use of the Appdome Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce this Agreement; (3) respond to any claims that your User Content violates the rights of third parties; (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Appdome, its Users or the public; and all enforcement or other government officials as Appdome in its sole discretion believes to be necessary or appropriate.
d. Effect of Termination or Suspension. Any suspension or termination of this Agreement and your account shall not affect your obligations to us under this Agreement (including but not limited to ownership, indemnification, any representations and warranties made by you, and limitation of liability), which by their sense and context are intended to survive such suspension or termination. You understand that any termination of this Agreement or of your account may involve deletion of your User Content from our live databases and may impact your End User’s ability to use Fused Mobile Apps. Appdome will have no liability whatsoever to you for any suspension or termination, including any impact to your End Users or the for deletion of your User Content.
16. Procedure for Making Claims of Copyright Infringement
It is our policy to terminate the privileges of any User who infringes copyright upon prompt notification to us by the copyright owner or the copyright owners’ legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on our Service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Appdome Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Appdome’s Copyright Agent for notice of claims of copyright infringement is as follows: Marcus Smith, Chief Financial Officer, Appdome, Inc., 150 Twin Dolphin Drive, Suite 350, Redwood City, CA 94065.
17. Disclaimer of Warranty
a. Testing Fusions. You understand that we are not responsible for testing any Fusions you create in or on your environment. Networks and environments differ and we cannot validate all possible variations of uses, usage and implementations. You must test and validate any Fusions you create on the Service.
b. As Is. EXCEPT FOR OUR INDEMNIFICATION OBLIGATIONS, YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICE AND ANY OTHER APPDOME PROPERTIES IS AT YOUR SOLE RISK. THE APPDOME PROPERTIES, INCLUDING THE SERVICE, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
c. Fusions and Third Party Software and Services. WITH RESPECT TO FUSIONS THAT YOU CREATE USING THE SERVICE AND THE SOFTWARE OR SERVICES PROVIDED BY THIRD PARTIES, INCLUDING THOSE PROVIDED BY ISVs OR MSVs OR THROUGH OUR FUSION CATALOGUE, WE EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT ANY SUCH FUSIONS, SOFTWARE AND SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY OR CONDITION REGARDING THE QUALITY OF ANY SUCH FUSIONS, SOFTWARE OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT ABOUT SUCH SERVICES OBTAINED THROUGH THE SITE OR THE SERVICE.
d. No Liability for User Content or Conduct. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR USER CONTENT, COMMUNICATIONS AND COMMERCIAL AGREEMENTS WITH OTHERS, INCLUDING WITH OTHER USERS OF THE SERVICE. YOU UNDERSTAND THAT WE DO NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICE. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, REPRESENTATIONS OR CONDITIONS, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY IN FULL TO YOU.
18. Limitation of Liability
a. Disclaimer of Certain Damages. EXCEPT WITH RESPECT TO A BREACH OF CONFIDENTIALITY PROVISIONS THAT MAY EXIST IN SEPARATE AGREEMENTS BETWEEN YOU AND US, AND THE INDEMNIFICATION OBLIGATIONS (IN SECTION 23), YOU UNDERSTAND AND AGREE THAT IN NO EVENT ARE WE, OR OUR ISV OR MSV USERS (INCLUDING OUR OR THEIR SALES CHANNEL PARTNERS) LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE APPDOME PROPERTIES, INCLUDING THE SERVICE, USE OF THE SERVICE, THE CONTENT OF OUR ISV OR MSV USERS, OR FUSIONS YOU CREATE ON OUR SERVICE, OR FOR ANY DAMAGES RESULTING FROM LOSS OF USE, INTERRUPTION OF USE, LOSS OF DATA, BREACH OF SECURITY, BREACH OF SECURITY OF OUR SERVICE, LOSS OF PRODUCTIVITY, LOSS PROFITS, LOSS OF ECONOMIC BENEFIT, WHETHER OR NOT SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
b. Cap on Liability. REGARDLESS OF THE PREVIOUS PARAGRAPHS, IF WE ARE FOUND TO BE LIABLE TO YOU, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF (A) THE TOTAL FEES (UNDER OUR FEES SCHEDULE) YOU PAID TO US IN THE 3 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, AND (B) $500. THE FOREGOING IS THE TOTAL MAXIMUM LIMIT OF OUR LIABILITY TO YOU AND ON ACCOUNT OF YOUR END USERS.
c. Third Party Beneficiaries. ISV AND MSV USERS THAT PARTICIAPTE IN OUR SERVICE ARE INTENDED THIRD PARTY BENEFICIARIES OF THESE PROVISIONS AND PROTECTIONS.
CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
If you as a user, have a dispute with one or more Users, including any ISV or MSV, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from any claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
20. No Relationship with Your End Users
End Users who use your Fused Mobile Apps and Mobile Services and Tools, or with whom you perform any other transactions involving the Service shall not be deemed to be the customers of Appdome. Appdome has no liability or responsibility to review, endorse, police or enforce any relationships between you and your End Users or to resolve any dispute between you and your End Users.
22. Written Amendments
We may enter into agreements or contracts with certain ISVs, MSVs and/or enterprise Users that supersede certain aspects of this Agreement. The terms of this Agreement may be modified only in writing and only as signed by duly authorized representatives of each party.
You will indemnify and hold us (and our officers, directors, agents, subsidiaries, joint ventures and employees) harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement, or your violation of any law or the rights of a third party. We agree to indemnify and hold you (and our officers, directors, agents, subsidiaries, joint ventures and employees) harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of a claim that the the Service infringes or misappropriates any copyright, trademark, moral right or trade secret.
24. No Agency
No agency, partnership, joint venture, employee-employer or franchiser- franchisee relationship is intended or created by this Agreement.
Except as explicitly stated otherwise, legal notices shall be served on Appdome’s registered agent (in the case of Appdome) and to the email address you provide to Appdome during the registration process (in your case). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to the address provided during the registration process. In such case, notice shall be deemed given three days after the date of mailing.
26. Legal Disputes
Before invoking the arbitration agreement we strongly encourage you to first contact us directly to seek a resolution through our Support Group.
a. Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Service, or to any aspect of your relationship with Appdome, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Appdome may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).
BY AGREEING TO ARBITRATION WITH APPDOME, YOU ARE AGREEING THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST APPDOME ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST APPDOME IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
b. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent [include name and address of registered agent here]. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
c. Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Appdome. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
d. Waiver of Jury Trial. YOU AND APPDOME HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Appdome are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section (26(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
e. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 27.
f. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
g. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
27. LAW AND FORUM FOR LEGAL DISPUTES
The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms
You may not use, export, import, or transfer Appdome Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Appdome Properties, and any other applicable laws. In particular, but without limitation, Appdome Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Company Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Appdome Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Appdome are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Appdome products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
a. Amendments. We may amend this Agreement at any time by posting the amended terms on the Service. Except as stated elsewhere, all amended terms shall automatically be effective 10 days after they are initially posted. This Agreement may not be otherwise amended except in a writing signed by you and us. For purposes of this provision, ”writing" doesn't include an email message and “signed” does include electronic signatures.
b. Entire Agreement. This Agreement sets forth the entire understanding and agreement among us with respect to the subject matter hereof. The following Sections survive any termination of this Agreement: 10 (Ownership), 11( Fees), 15 (Terminations), 16 (Procedure for Making Copyright Claims), 17 (Disclaimer of Warranty), 18 (Limitation of Liability), 19 (Release), 20 (No Relationship With Your End Users), 23 (Indemnity), 25 (Notices), 26 (Legal Disputes), 27 (Law and Forum of Legal Disputes), 28 (Export), and 29 (General)..
c. Severability. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. In our sole discretion, we may assign this Agreement in accordance with the Notices Section. Headings are for reference purposes only and do not limit the scope or extent of such section. Our failure to act with respect to a breach by you or others doesn't waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Agreement.