Welcome to www.kinvey.com (and any variations of or successors to this website, collectively, the "Site") a website operated by Kinvey, Inc. ("Kinvey", "we", "us", or "our"). We offer a backend as a service platform that makes it easy for developers and enterprises to setup, use and operate a cloud backend for mobile and tablet applications and a number of related services.
These Terms are subject to occasional revision. If we make any material changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and / or by prominently posting notice of the changes on our Site. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. We encourage you to periodically review these Terms to be informed with respect to your and Kinvey’s rights and obligations with respect to the Site. Continued use of our Site following notice of such changes will indicate your acknowledgement of such changes and agreement to be bound by the new, modified Terms.
PLEASE READ THESE TERMS CAREFULLY. BY ACCESSING OR USING THE SITE YOU AGREE TO BE BOUND BY THESE TERMS AND ANY OTHER POSTED GUIDELINES OR RULES APPLICABLE TO THE SITE OR ANY PORTION OF THE SITE. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THE SITE. YOU ALSO AGREE TO THE USE OF ELECTRONIC COMMUNICATIONS (WE DON'T USE PAPER!) IN ORDER TO ENTER INTO THIS AGREEMENT AND TO THE ELECTRONIC DELIVERY OF NOTICES AS DESCRIBED BELOW.
2. DEV CENTER. Included as part of the Site is the Kinvey Dev Center (the “Dev Center”). Use of the Dev Center and the information, materials, tools, libraries, software development kits, software code and associated documentation made available through the Dev Center is subject to these Terms and any additional terms and conditions, terms of service, user agreements, license agreements, or similar legal agreement/s made available on the applicable website page on which such items may be accessed or provided with, or on download of, such items.
3. OWNERSHIP; FEEDBACK; YOUR CONTENT. You understand and acknowledge that the Site, the Dev Center and the information, materials, tools, libraries, software development kits, software code and associated documentation made available through the Dev Center, and the software, tools and other technology underlying our Services (collectively, the “Kinvey Property”) are: (i) copyrighted by us and / or our licensors under United States and international copyright laws; (ii) subject to other intellectual property and proprietary rights and laws; and (iii) owned by us or our licensors. Except as expressly provided in our documentation, Kinvey Property may not be copied, modified, reproduced, republished, displayed posted, transmitted, sold, offered for sale, or redistributed in any way, and you may not make any derivative works of Kinvey Property, without our prior written permission. You must abide by all copyright notices, information, or restrictions contained in or attached to any of the Kinvey Property.
Certain of the names, logos, and other materials displayed on the Site or in the Services constitute trademarks, tradenames, service marks or logos ("Marks") of Kinvey or other entities. You are not authorized to use any such Marks without our written consent. Ownership of all such Marks and the goodwill associated with them remains with us or those other entities.
In the event that you provide us any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Kinvey Property (collectively “Feedback”), including in response to any product plans or roadmaps we share with you, you hereby grant to Kinvey a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, license, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same without restriction or obligation of any kind, on account of confidential information, intellectual property rights or otherwise, and may incorporate into its services any service, product, technology, enhancement, documentation or other development (“Improvement”) incorporating or derived from any Feedback with no obligation to license or to make available the Improvement to Reseller or any other person or entity. This is true whether you provide the Feedback on the Site or through any other method of communication with us, unless we have entered into a separate agreement with you that provides otherwise.
With respect to any content posted by you on, to, or through the Site, you hereby grant Kinvey a world-wide, royalty free, fully paid up, irrevocable, perpetual, transferable, sublicenseable license to use, copy, transmit, publicly display, publicly perform, create compilations including, create derivative works of, and distribute such content to publish and promote such content in connection with the Site and to publish and promote such content elsewhere within the Site or through the Services. Such license shall apply with respect to any form, media, or technology now known or later developed.
You represent and warrant that the content:
We do not endorse any content or any opinion, recommendation, or advice expressed in any content, made available through our Site and we expressly disclaim any and all liability in connection with any content. We may decide whether any content you provide is inappropriate or not in compliance with these Terms and reserve the right to remove content and / or suspend or terminate your use of the Site at any time, without prior notice and in our sole discretion. ANY USE OF CONTENT PROVIDED BY OTHERS, INCLUDING OTHER CUSTOMERS, IS ENTIRELY AT YOUR OWN RISK. WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT ANY CONTENT AVAILABLE ON THE SITE, INCLUDING WITHOUT LIMITATION WITH RESPECT TO SUCH CONTENT'S QUALITY, ACCURACY, LEGALITY OR RELIABILITY.
4. GENERAL RULES OF CONDUCT. You agree you will not:
5. MODIFICATIONS; TERMINATION. We reserve the right to modify the Site from time to time, including without limitation modifying the information, materials, software development kits and software code made available through the Dev Center. If you object to any such changes, your sole recourse will be to cease access to the Site and/or Dev Center. Continued access to the Site and/or Dev Center following notice of any such changes will indicate your acknowledgement of such changes and satisfaction with the Site and/or Dev Center as so modified. You agree that we, in our sole discretion, may immediately terminate your access to the Site and/or Dev Center at any time, for any reason. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY MODIFICATIONS TO THE SITE AND/OR DEV CENTER OR FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE AND/OR DEV CENTER.
6. THIRD PARTY SERVICES, CONTENT AND OTHER WEBSITES. Content, software or services provided by third parties may be made available to you through the Site and/or Dev Center. Your use of any third party content, software or services is governed by the terms of the applicable provider, not these Terms. By accessing third party content, software or services, you agree to comply with the applicable terms and acknowledge, that you, and not Kinvey, are party to such terms. In addition, the Site or Dev Center may contain links to websites, content and services not operated by us. Your use of such websites, content and services is subject solely to the terms of the agreements between you and such third party.
In all cases, Kinvey is not responsible for the accuracy, legality, currency, suitability or quality of services, content, products, materials, or practices (including privacy practices) of such third parties. We assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content made available by other users, advertisers, and other third parties or violation of any third party rights related to such content. YOU AGREE THAT IN NO EVENT WILL WE BE LIABLE TO YOU IN CONNECTION WITH THE WEBSITES, CONTENT, MATERIALS OR PRACTICES OF ANY THIRD PARTY.
7. DISCLAIMER OF WARRANTIES. THIS SITE AND ALL CONTENT AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU ARE PROVIDED BY KINVEY "WITH ALL FAULTS" AND ON AN "AS IS" AND "AS AVAILABLE" BASIS. We make no representation as to the completeness, accuracy, legality, reliability, operability, availability or currentness of any information on this Site, and we undertake no obligation to update or revise the information contained on this Site, whether as a result of new information, future events or circumstances or otherwise. It is your responsibility to verify any information contained in this Site before relying upon it.
ACCORDINGLY, KINVEY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE OPERATION OF THIS SITE OR OUR CONTENT OR SERVICES INCLUDED ON, OR OTHERWISE MADE AVAILABLE TO YOU THROUGH, THIS SITE, AND WE EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, TITLE AND ACCURACY. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK. We make no warranty that the Site will meet your requirements, or that the Site will be uninterrupted, timely, secure, or error free; nor do we make any warranty as to the results that may be obtained from the use of the Site, or that defects in the Site will be corrected.
KINVEY DISCLAIMS ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL. KINVEY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY INFORMATION OR MATERIAL THROUGH THE SERVICES, INCLUDING, WITHOUT LIMITATION, FOR HARM CAUSED BY VIRUSES, MALICIOUS CODE OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. You understand and agree that you will be solely responsible for any damage to your computer or loss of data that results from the use of or download of any material, software code and/or content from the Site. No advice or information, whether oral or written, obtained by you from us through the Site or otherwise will create any warranty, representation or guarantee not expressly stated in these Terms.
Some states do not allow exclusion of implied warranties, so these exclusions may not apply in individual cases. You may have additional rights that vary from state to state. To the extent that we 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 applicable law.
8. LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO THE SITE IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS ARISING OUT OF OR RELATED TO THE SITE, HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.
SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SERVICES, FROM INABILITY TO USE THE SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES).
SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SITE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE SITE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SITE. WE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND THIRD PARTIES OR FOR ANY INFORMATION APPEARING ON THIRD PARTY SITES OR ANY OTHER WEBSITES LINKED TO OUR SITE. YOU SPECIFICALLY ACKNOWLEDGE THAT KINVEY IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE, INFRINGING, HARMFUL, OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, KINVEY WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD PARTY CONTENT UPLOADED ONTO OR DOWNLOADED OR THROUGH THE SERVICES, OR IF YOUR DATA IS LOST, CORRUPTED OR EXPOSED TO UNINTENDED THIRD PARTIES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU.
9. INDEMNIFICATION. You agree to indemnify, defend and hold harmless Kinvey, our parents, subsidiaries, affiliates, officers, directors, co-branders and other partners, employees, consultants and agents, from and against any and all claims, suits, proceedings, investigations, allegations, demands, damages, costs, expenses, amounts agreed to in settlement, losses and any and all other liabilities (including reasonable attorneys’ fees and court costs) arising out of or resulting from: (i) your use of the Site and your use of any information, materials, software development kits, or software downloaded or obtained from the Dev Center; (ii) a violation of these Terms; (iii) a violation of any rights of any other person or entity; (iv) your registration; or (v) any viruses, Trojan horses, worms, time bombs, spyware, malware, cancelbots or other similar harmful or deleterious programming routines input by you.
10. GOVERNING LAW; ARBITRATION; JURY TRIAL WAIVER; CLASS ACTION WAIVER; FORUM SELECTION CLAUSE.These Terms and the relationship between you and Kinvey shall be governed by the laws of the Commonwealth of Massachusetts, without giving effect to any choice of laws principles that would require the application of the laws of a different country or state. You agree to submit to the personal and exclusive jurisdiction of the courts located within the Commonwealth of Massachusetts for the adjudication of any and all claims arising out of your use of the Site and your relationship with Kinvey, and you waive any objection thereto.
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and Kinvey or Kinvey’s employees, agents, successors, or assigns, will exclusively be settled through binding and confidential arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association ("AAA"). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively "Rules and Procedures"). You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court.Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT. With the exception of subparts (a) and (b) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (a) or (b) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither you nor Kinvey will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in state or federal court in Boston, Massachusetts.For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
You and Kinvey must abide by the following rules: (a) ANY CLAIMS BROUGHT BY YOU OR KINVEY MUST BE BROUGHT IN THE PARTIE’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Kinvey will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) Kinvey also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitration will be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (g) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law.
Notwithstanding the foregoing, either you or Kinvey may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret will not be subject to this arbitration agreement. Such claims will be exclusively brought in the state or federal courts located in Boston, Massachusetts. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Boston, Massachusetts in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Boston, Massachusetts for such purposes. A request for interim measures will not be deemed a waiver of the right to arbitrate.
11. ELECTRONIC COMMUNICATIONS. We can only give you the benefits of our service by conducting business through the Internet, and therefore we need you to consent to our giving you Communications (defined below) electronically. This Section 11 informs you of your rights when receiving Communications from us electronically. For contractual purposes, you (i) consent to receive Communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications ("Communications") that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if they were in writing. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non-savable rights. You may also receive a copy of these Terms by accessing this Site. You may withdraw your consent to receive Communications electronically by contacting us in the manner described below. If you withdraw your consent, from that time forward, you must stop using the Site. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between us prior to the time you withdraw your consent. Please keep us informed of any changes in your email or mailing address so that you continue to receive all Communications without interruption.
12. GENERAL TERMS. You are responsible for compliance with all applicable laws. These Terms are personal to you, and you may not transfer, assign or delegate your rights and/or duties under these Terms to anyone else and any attempted assignment or delegation is void. You acknowledge that we have the right hereunder to seek an injunction, if necessary, to stop or prevent a breach of your obligations hereunder. The paragraph headings in these Terms, shown in boldface type, are included only to help make these Terms easier to read and have no binding effect. Any delay or failure by us to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. No waiver by us will have effect unless such waiver is set forth in writing, signed by us; nor will any such waiver of any breach or default constitute a waiver of any subsequent breach or default. These Terms constitute the complete and exclusive agreement between you and us with respect to the subject matter hereof, and supersede all prior oral or written understandings, communications or agreements. If for any reason a court of competent jurisdiction finds any provision of these Terms, or portion thereof, to be unenforceable, that provision of the Terms will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of these Terms will continue in full force and effect. Where Kinvey has provided you with a translation of the English language version of the Terms, and/or any other documentation, you agree that the translation is provided for your convenience only and that the English language versions will govern.
13. CONTACTING US; NOTICE; VIOLATIONS. If you have any questions or concerns about our Site, your registration, or anything else, please follow the Contact Us link on the Site, or send an e-mail to firstname.lastname@example.org. We may give notice to you by email, a posting on the Site, or other reasonable means. You must give notice to us in writing via email to email@example.com or as otherwise expressly provided. Please report any violations of these Terms to firstname.lastname@example.org.
Last Updated: Aug 1, 2015