Effective December 21st, 2011.
1.1. Your use of the AppGyver service is governed by this agreement (the "Terms"). "AppGyver" means AppGyver Oy, located at Pursimiehenkatu 29-31 D 205, 00150 Helsinki, Finland and its holding company, subsidiaries or affiliates involved in providing the AppGyver Service.
1.2. In order to use the AppGyver Services, You must first agree to the Terms. You can agree to the Terms by actually using the AppGyver Services. You understand and agree that AppGyver will treat your use of the AppGyver Services as acceptance of the Terms from that point onwards.
1.3. You may not use the AppGyver Services if You are a person barred from receiving the AppGyver Services under the laws of Finland or other countries, including the country in which You are resident or from which You use the AppGyver Services. You affirm that You are over the age of 13, as the AppGyver Services are not intended for children under 13.
1.4. You agree your purchases of AppGyver Services are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by AppGyver or any of its affiliates regarding future functionality or features.
2.1. You must provide accurate and complete registration information when You register to use the AppGyver Services. You are responsible for the security of your passwords and for any use of your account. If You become aware of any unauthorized use of your password or of your account, You agree to notify AppGyver immediately.
2.2. Your use of the AppGyver Services must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.
2.3. You may use the AppGyver Services only to develop and run applications on or with the AppGyver infrastructure. You may not access the AppGyver Services for the purpose of bringing an intellectual property infringement claim against AppGyver or for the purpose of creating a product or service competitive with the AppGyver Services.
3.1. “AppGyver Services” means the services AppGyver makes available through its websites, including the Software, AppGyver Website, the AppGyver mobile and cloud development/hosting platform, the AppGyver Preview App, the AppGyver API, the AppGyver Cloud Add-ons, any other add –ons and any other software or services offered by AppGyver in connection to any of those.
3.2. "Application(s)" means the software application products that You will develop using the AppGyver Services.
3.3. “Content” means any content such as text, images or other data used by or stored in the Application.
3.4. "Documentation" means the end-user guides and manuals customarily provided by AppGyver to You for use with the AppGyver Services.
3.5. “You” means the user of the AppGyver Services, typically You using AppGyver Services to develop applications.
3.6. "Software" means the AppGyver Studio, AppGyver Preview, software parts that are downloaded from cloud and any other software included in the AppGyver Services and licensed to You by AppGyver under these Terms.
4.1. Subject to the Terms, certain AppGyver Services are provided to You without charge up to certain limits (“Fremium Services”). Certain services or features requires your purchase of additional resources or services (“Premium Services”). The pricing for Premium Services can be found at AppGyver website.
4.2. AppGyver may change its fees and payment policies for the AppGyver Services by notifying You at least seven (7) days before the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted on the website (or such other URL AppGyver may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason. If You do not accept the fee change, You may terminate these Terms within seven (7) days from the date when the change takes place. Upon termination You right to use AppGyver Services terminates.
5.1. AppGyver gives You a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Software provided to You by AppGyver as part of the AppGyver Services. This license is for the sole purpose of enabling You to use and enjoy the benefit of the AppGyver Services, in the manner permitted by the Terms.
5.2. You may not (and You may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless You have been specifically told that You may do so by AppGyver, in writing; or (b) attempt to disable or circumvent any security mechanisms used by the Software or AppGyver Services.
5.3. AppGyver hereby grants You a limited, non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to display the AppGyver trademarks and/or logos (“Marks”) for the sole purpose of promoting or advertising that You use the AppGyver Services and solely in accordance with AppGyver’s then current Trademark Usage Guidelines, which will be available upon request. You agree that all goodwill generated through your use of the AppGyver Marks shall inure to the benefit of AppGyver.
6.1.AppGyver claims no ownership or control over any Content or Application created by You. You retain copyright and any other rights You already hold in the Content and/or Application, and You are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the AppGyver Services You give AppGyver a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling AppGyver to provide You with the AppGyver Services. Furthermore, by creating an Application through use of the AppGyver Services, You give AppGyver a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Application for the sole purpose of enabling AppGyver to provide You with the AppGyver Services.
6.2.You may choose to or we may invite You to submit comments or ideas about the AppGyver Services, including without limitation about how to improve the AppGyver Services (“Ideas”). By submitting any Idea, You agree that your disclosure is gratuitous, unsolicited and without restriction and will not place AppGyver under any fiduciary or other obligation, and that AppGyver is free to use the Idea without any additional compensation to You, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
6.3.If You are using the Fremium Services then You must agree that AppGyver, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the AppGyver Services.
7.1. AppGyver may make available through the AppGyver Services additional features, functionality, and services offered by AppGyver or its third-party partners (“Add-ons”). Your use of Add-ons is subject to these Terms, any possible additional terms and to the applicable fees. You acknowledge for each Add-on You subscribe to or purchase through the AppGyver Services, these Terms and any additional terms constitute a binding agreement between You and the Add-on licensor of that Add-on (“the Add-on Provider”) only. The Add-on Provider of each Add-on is solely responsible for that Add-on, the content therein, and any claims that You or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge that You are purchasing the license to each Add-on from the Add-on Provider of that Add-on; AppGyver may be acting as agent for the Add-on Provider in providing each such Add-on to You; AppGyver is not always a party to the license between You and the Add-on Provider with respect to that Add-on; and AppGyver is not always responsible for that Add-on, the content therein, or any claims that You or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge and agree that AppGyver, and AppGyver’s subsidiaries, are third party beneficiaries of the agreement between You and the Add-on Provider for each Add-on, and that AppGyver will have the right (and will be deemed to have accepted the right) to enforce such license against You as a third party beneficiary thereof.
7.2. By subscribing to or purchasing an Add-on, You grant AppGyver permission to share your Application, Content, and user information with the Add-on Provider as necessary in order to provide You the Add-on.
7.3. The license granted to You to use any Add-on is personal to You, it can be used as part of your Application (subject to the possible Terms of the Add-On). You may not provide or resell Add-Ons to other users unless otherwise agreed with AppGyver.
8.1. Title to the Software shall not pass from AppGyver to You and the Software shall at all times remain the sole and exclusive property of AppGyver. Subject to the foregoing, You shall own all right, title and interest in and to the Applications.
8.2. You acknowledge and agree that AppGyver (or AppGyver’s licensors) own all legal right, title and interest in and to the AppGyver Services, including any intellectual property rights which subsist in the AppGyver Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
8.3. Except as provided in Section 6 (“License fromYou”), AppGyver acknowledges and agrees that it obtains no right, title or interest from You (or your licensors) under these Terms in or to any Content or Applications that You create, submit, post, transmit or display on, or through, the AppGyver Services, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless You have agreed otherwise in writing with AppGyver, You agree that You are responsible for protecting and enforcing those rights and that AppGyver has no obligation to do so on your behalf.
9.1. AppGyver is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the AppGyver Services which AppGyver provides may change from time to time without prior notice to You, subject to the terms in Section 4.ii (Fees for Use of the AppGyver Services). Changes to the form and nature of the AppGyver Services will be effective with respect to all versions of the AppGyver Services; examples of changes to the form and nature of the AppGyver Services include without limitation changes to fee and payment policies, security patches, added functionality, and other enhancements.
9.2. You may terminate these Terms at any time by canceling your account on the AppGyver Services. You will not receive any refunds for any AppGyver Services purchased but not yet delivered if You cancel your account.
9.3. You agree that AppGyver, in its sole discretion and for any or no reason, may terminate your account or any part thereof. You agree that any termination of your access to the AppGyver Services may be without prior notice, and You agree that AppGyver will not be liable to You or any third party for such termination.
9.4. You are solely responsible for exporting your Content and Application(s) from the AppGyver Services prior to termination of your account for any reason, provided that if we terminate your account, we will provide You a reasonable opportunity to retrieve your Content and Application(s).
9.5. Upon any termination of the AppGyver Services or your account these Terms will also terminate, but Sections 8 (“Proprietary Rights”), 9 (“Modification and Termination of the AppGyver Service”), 11 (“Exclusion of Warranties”), 11 (“Limitation of Liability”), 12 (“Indemnification”), and 15 (“General Legal Terms”) shall continue to be effective after these Terms are terminated.
9.6. You understand and agree that AppGyver may suffer irreparable harm in the event that You fail to comply with any of its obligations under this Agreement, and that monetary damages in such event may be inadequate to compensate AppGyver. Consequently, in such event AppGyver may be entitled, in addition to such monetary relief as may be recoverable by law, to such temporary, preliminary and/or permanent injunctive relief as may be necessary to restrain any continuing or further breach by You.
10.1. NOTHING IN THESE TERMS, INCLUDING SECTIONS 11 AND 12, SHALL EXCLUDE OR LIMIT APPGYVER’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
10.2. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE APPGYVER SERVICE IS AT YOUR SOLE RISK AND THAT THE APPGYVER SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE."
10.3. APPGYVER, ITS HOLDING COMPANY, SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE APPGYVER SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, APPGYVER, ITS HOLDING COMPANY, SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE APPGYVER SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE APPGYVER SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE APPGYVER SERVICES WILL BE ACCURATE.
11.1. SUBJECT TO THE WARRANT SECTION ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT APPGYVER, ITS HOLDING COMPANY, SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
11.2. THE LIMITATIONS ON APPGYVER’S LIABILITY TO YOU IN THE PARAGRAPH ABOVE SHALL APPLY WHETHER OR NOT APPGYVER HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
You agree to hold harmless and indemnify AppGyver, and its holding company, subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners (collectively "AppGyver and Partners") from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of the AppGyver Services, (c) your violation of applicable laws, rules or regulations in connection with the AppGyver Services, or (d) your Content or your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, AppGyver will provide You with written notice of such claim, suit or action.
AppGyver may disclose to You certain Confidential Information (as defined below). You agree that the Confidential Information is the sole and exclusive property of AppGyver (or a third party providing such information to AppGyver) and that AppGyver or such third party owns all world-wide rights therein under patent, copyright, trade secret, confidential information, or other proprietary rights. The disclosure of the Confidential Information to You does not confer upon You any license, interest or rights of any kind in or to the Confidential Information. You shall hold in confidence and will not, directly or indirectly, use, reproduce, distribute, reverse engineer, decompile, transfer, or disclose the Confidential Information or any portion thereof other than as necessary to perform its obligations or exercise its rights under this Agreement. You shall return to AppGyver all Confidential Information, together with all copies and material relating thereto (a) upon termination or expiration of this Agreement for any reason, or (b) upon request by AppGyver. Your obligations with regard to the Confidential Information shall remain in effect during the term of this Agreement and for a period of five (5) years thereafter. As used herein, "Confidential Information" means non-public information of AppGyver that is disclosed to You, including but not limited to the Software and Documentation.
14.1. AppGyver may make changes to these Terms from time to time. If we change the Terms in any substantive way, we will give You at least seven (7) days notice before the changes take effect, during which period of time You may reject the changes by terminating your account.
14.2. You understand and agree that if You use the AppGyver Services after the date on which the Terms have changed, AppGyver will treat your use as acceptance of the updated Terms.
15.1. Entire Agreement. This Agreement contains the entire understanding of the parties hereto relating to the AppGyver Services and supersedes any prior or contemporaneous written or oral agreement or understandings between the parties with respect to the AppGyver Services, and cannot be changed or terminated orally. This Agreement may be amended only in writing signed by the authorized representatives of the parties hereto.
15.2. Severability; Waiver. If any provision in this Agreement is invalid or unenforceable, that provision shall be reformed to the maximum extent allowed by law to reflect the same economic effect as the invalid or unenforceable provision, and the other provisions of this Agreement shall remain in full force and effect. No waiver of any right under this Agreement shall be deemed effective unless contained in writing and signed by a duly authorized representative of the party purporting to make the waiver, and no waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this Agreement.
15.3. Assignment. You may not assign or transfer this Agreement, by operation of law or otherwise, without the prior written consent of AppGyver. All rights and obligations arising out of this Agreement shall inure to the benefit of, and be binding on and enforceable by the parties and their respective permitted successors and permitted assigns.
15.4. Independent Contractors. You and AppGyver shall perform their duties pursuant to this Agreement as independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership or other joint relationship between You and AppGyver. Neither party shall have the ability to incur any obligation on behalf of the other party.
15.7. Compliance with Laws. You shall use and distribute the Application(s) in accordance with all applicable laws and regulations, including (without limitation) export laws and regulations and those laws and regulations designed to protect against the unauthorized use and disclosure of personally identifiable information. Each party shall comply with the export laws and regulations of Finland and other applicable jurisdictions. Without limiting the foregoing, (i) each party represents that it is not named on any Finnish or US government list of persons or entities prohibited from receiving exports, and (ii) You shall not access or use Products in violation of any Finnish and US export embargo, prohibition or restriction.
15.8. Governing Law. This Agreement shall be governed and construed in accordance with the laws of Finland without regard to its conflicts of laws provisions. Each party agrees that any claim or cause of action arising under or relating to this Agreement will be brought in a court of competent jurisdiction located in Helsinki, Finland and each party irrevocably consents to such personal jurisdiction and waives all objections thereto. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act (UCITA) will apply in any respect to this Agreement.
15.9. Force Majeure. A party’s performance under this Agreement is excused if that party is unable to perform under this Agreement due to an event beyond its reasonable control, including without limitation, natural disasters, labor unrest, government restrictions, and the like.
15.10. Notices. You agree that Appgyver may provide You with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the AppGyver Services. By providing your email address, You consent to our using the email address to send You any notices required by law in lieu of communication by postal mail.