Welcome to www.kinvey.com (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 ("Apps"), and a number of related services (collectively, the Site and any such services, the "Services").
The following terms and conditions (the "Terms") form a binding agreement between you and us when you use or access the Site or Services including when you simply browse the Site as a "Visitor", develop an App on behalf of someone else (each a "Facilitating Developer"), or purchase any Service, including the ones we call "Enterprise Edition", "Developer Edition" or "Consulting Services," (collectively, any Visitor, Facilitating Developer and purchaser, a "Customer", "you" or "your"). You refers to the person accessing or using the Services, or, if the Services are being used on behalf of an organization, such as an employer, "you" means such organization. In the latter case, the person accessing or using the Services represents and warrants that he or she has the authority to do so and to bind such organization to these Terms.
PLEASE READ THESE TERMS CAREFULLY. BY ACCESSING OR USING THE SERVICES OR BY DOWNLOADING ANY KINVEY SOFTWARE (WHETHER FROM THE SITE OR FROM A THIRD PARTY WEBSITE HOSTING SUCH SOFTWARE) YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES. 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 WE FURTHER DETAIL IN SECTION 24.
1. KINVEY RESPONSIBILITIES TO CUSTOMERS OF ENTERPRISE EDITION AND DEVELOPER EDITION. In the next few enumerated paragraphs, we are going to be talking a lot about your responsibilities, so we thought we would start out by saying what we will do for you. Subject to these Terms, we will provide you access to our great tools and host the backend for your Apps. Once you build the App using our tools, you will have access to our reporting tools that provide you insight into how the App is being used and assist you in improving the App's performance. You can contact Kinvey at firstname.lastname@example.org for certain limited support services in accordance with our standard policies and procedures. If you need additional support beyond our standard support, we may make such additional support available at our discretion at additional cost.
2. REGISTRATION. Certain areas of the Site and certain Services are restricted for registered users only. When you register, we will ask for your name, email address and other related information and assuming we don't find the information you provide to be of concern, we will create an account ("Account") for you. As part of the registration process you (or we at your request) will create a user ID and password for each of your developers and / or other admin users (collectively "Admin Users") and provide security protocols, policies, network links and connections for each (the "Access Protocols"). Anything your employees and agents do, as Admin Users, will be considered your act or omission, and so when we say in these Terms "you" will do this or "you" won’t do that, we mean you and your Admin Users will do this or you and your Admin Users won’t do that. Here is an example: the information you provide to us, as part of the registration process must be true, accurate, current and complete. If we believe or suspect that your information is not true, accurate, current or complete, we may deny or terminate your access to the Services (or any portion thereof). (See, we said "you", with the understanding that "you" includes your Admin Users.)
3. ORDERING SERVICES.
a. Enterprise Edition and Consulting Services. You can order Enterprise Edition and Consulting Services by contacting your sales representative or by writing email@example.com and entering into an order form that will be executed by you and us (each an "Order Form"). (Well, ok, maybe we do still use paper, on occasion.) In any case, the Order Form specifies the Services to be purchased, the fees to be paid and any restrictions on use ("Usage Limitations"), which may include limits on the number and type of App Users, the number and type of links to "Third Party Data Sources" (which are widely available data sources that are made available through our Developer Edition, like Facebook and Twitter ) and / or "Private Data Sources" (which are other proprietary data sources, including your own data sources and / or those you license from third parties) and the number and type of links to authentication systems ("Auth Links"). Collectively, all Third Party Data Sources and Private Data will be referred to as "Data Sources" and all such links, including Auth Links, "Data Links". Each Order Form will be governed by these Terms. We reserve the right to accept or reject any offer for the purchase of Enterprise Edition. An "App User", whether for Enterprise Edition or Developer Edition, means an employee, independent contractor, consumer or other individual that you authorize, directly or indirectly, to download and use your App.
b. Developer Edition. You can order Developer Edition by going to https://console.kinvey.com/, signing up and entering your credit card information.
c. Purchase Orders. You may issue a purchase order for any Services you purchase. All purchase orders are for administrative purposes only. No term or condition contained in any purchase order you issue or any invoice we issue will be of any force or effect. Your use of the Services are governed entirely by these Terms and any additional terms contained in any Order Form.
4. USE OF YOUR ACCOUNT. Once you are registered and have purchased Services, you can begin using our great tools and services. But as your mother told you, with opportunity comes responsibility. For starters, we say that in using the Services, you must abide by these Terms, use the Services in accordance with any documentation or policies we make available to you, and comply with applicable local, state, national and foreign laws, including those related to data privacy and intellectual property. You may not use your Account in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others. Here's another important one: don't provide your Access Protocols to anyone else or allow any of your Admin Users to provide their Access Protocols to anyone else. We mean it. We rely on the Access Protocols as a method to differentiate one user from another. If someone else is using your Access Protocols, we will assume they are you and we'll give them access. (Don’t forget, "you" includes your Admin Users for whom you are responsible). You will be responsible for all activity carried out under your Account using Access Protocols made available to you. If you know or suspect that someone has gained access to Access Protocols made available to you, you agree to let us know. We'll turn off the compromised Access Protocols and issue new Access Protocols. We reserve the right to take any action we deem necessary or reasonable to ensure the security of the Services and your Account, including terminating your access or the access of any of your Admin Users or App Users, changing passwords, or requesting additional information to authorize activities related to your Account. In no event and under no circumstances will we be held liable to you for any liabilities or damages resulting from or arising out of: (i) any action or inaction on our part under this provision, (ii) any compromise of the confidentiality of your Account, and (iii) any unauthorized access to or use of your Account. Our lawyers wrote that language, but we asked them to. We take security seriously and want you to do your part.
5. OWNERSHIP. You understand and acknowledge that the software, code, proprietary methods and systems used to provide the Site or Services, including the Oracle and Salesforce Data Links and the templates made available to you to create Apps, Data Links, Auth Links, Software (defined below) or Code (as defined below) (collectively, "Our Technology") 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, Our Technology may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Technology. Nothing in these Terms grants you any right to receive delivery of a copy of Our Technology or to obtain access to Our Technology except as generally and ordinarily permitted through the Services according to these Terms. 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.
Use of any software and associated documentation that is made available via the Site or the Services (including on third party websites) (“Software”) is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the Site page(s) accompanying the Software. These license terms may be posted with the Software downloads on the page where the Software can be accessed.
6. RIGHT OF ACCESS; RESTRICTIONS; CODE. Subject to these Terms, Kinvey hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the Services, solely for purposes of developing Apps and setting up and maintaining a cloud backend for your Apps in accordance with these Terms. Your use of the Services are limited by the Usage Restrictions set forth in an Order Form or on the Site at the time you purchase the Services, and any use of the Services in ways that exceed the Usage Restrictions will be a breach of this Terms. You may have the ability to create and upload onto the Services certain code, namely: (a) integration scripts that connect to Third Party Data Sources, Private Data Sources and Auth Links and (b) that enable business logic (all such integration scripts and code created and / or used by you, but excluding any of Our Technology (e.g., templates) contained therein, "Code"). Subject to the terms and conditions of this Agreement, you hereby grant Kinvey a non-exclusive license to inspect the Code to ensure its compliance with our Services and to use and modify the Code as necessary or desired to provide and improve the Services. We may modify or disable any Code at our discretion. You represent and warrant that the Code will not contain any open source software that is governed by a license that imposes a requirement or condition that any Kinvey software: (A) be disclosed or distributed in source code form; (B) be licensed for the purpose of making modifications or derivative works; or (C) be redistributable at no charge.
7. CONSULTING SERVICES. We will use reasonable commercial efforts to perform the Consulting Services and deliver any deliverables ("Deliverables") in accordance with the specifications set forth in any Order Form and / or any statement of work that is signed by an authorized representative of both you and us (a "SOW"). Deliverables consist of Our Technology and Work Product, and to the extent set forth in any Order Form or SOW, your Confidential Information. We are the exclusive owner of Our Technology and Work Product contained in any Deliverable and you retain ownership of your Confidential Information. "Work Product" means all intellectual property and intellectual property rights, including materials, software, specifications, documentation, ideas, know-how, techniques, processes, inventions, and improvements and upgrades to Our Technology created by us while performing the Consulting Services (whether alone or acting jointly with you), but excluding any of your Confidential Information or any materials that you may have provided to us. Subject to the terms of this Agreement and upon receipt by us of full payment of Fees due under the applicable SOW, we grant to you a non-assignable, non-exclusive, non-transferable license to use Our Technology and Work Product contained within a Deliverable solely in connection with the App specified in the Order Form and / or SOW and solely for use with the Services. Except as expressly set forth in this Agreement, including any Order Form or SOW, you will not copy, modify, transcribe, store, translate, sell, lease, or otherwise transfer Our Technology or the Work Product, in whole or in part.
8. FEES AND EXPENSES.
a. Customers of Enterprise Edition and Consulting Services.
b. Customers of Developer Edition. Using a payment method made available to you on the Site (e.g., Visa, MasterCard, PayPal), you agree to pay the applicable fees (as listed on the Site) for the Services (also the "Fees"), based on the type of success pricing that is applicable to you (e.g., native or non-native pricing). We may take up to sixty (60) days to debit or charge your payment method, but we reserve the right to charge or debit your payment method each month within ninety (90) days of the end of the month in which the Services were delivered. By providing Kinvey with your card number or PayPal account and associated payment information ("Payment Information"), you authorize us to charge or debit your payment method the applicable fees in accordance with this payment schedule. You agree to immediately notify us of any change in your Payment Information. If we are unable to receive payment of the applicable amount (e.g., your payment method has expired and has not been replaced), we may suspend or terminate this Agreement and / or your access to the Services. Kinvey reserves the right at any time to change our prices and billing methods, either immediately upon posting on the Website or by e-mail delivery to you.
c. Taxes. All Fees will be paid in US dollars and are net of any taxes. You agree to pay any and all sales, use, excise and other taxes applicable to your use of the Services (other than taxes on Kinvey’s income), if any. To the extent that we have nexus with the taxing jurisdiction in which you are located, we may collect any applicable tax from you. If you are paying the Fees using a credit or debit card, you authorize us to charge or debit your payment method the applicable tax in conjunction with your payment of the Fees.
9. RULES REGARDING APPS AND CONTENT. When we refer to your "Content," we mean Code, Third Party Data Sources, Private Data Sources and all other software code, web pages, text, videos, images, audio clips, photos, graphics, advertisements, sponsorships and / or other types of content or data posted to our forums or provided or uploaded by you, Admin Users or App Users whether through the Site, Services or any App, and all information collected by your App. You are responsible for any Content submitted and made available through the Site or Services. You will be entirely responsible for each individual item of Content provided by you, Admin Users or App Users through the Services, and, as between you and us, you retain ownership and any intellectual property rights in such Content. You will, at your own expense, obtain all third party licenses, consents and / or permissions that may be necessary or appropriate with respect to such Content to enable each party to exercise its rights and perform its obligations under this Agreement. This means that you will secure any such rights from App Users through a separate terms of service as further defined in Section 11 below. You hereby grant us a non-exclusive, royalty-free, perpetual, fully paid, worldwide license, under any and all of your copyrights and other intellectual property rights to use, host, store, disseminate, distribute, publicly display, reproduce, sublicense, post, or publish your Content (including your Apps) for the purposes of performing the Services and to allow our vendors the right to do the same. If you are using Developer Edition, you also grant us non-exclusive, royalty-free, fully-paid, fully sublicensable, worldwide license under any and all of your copyrights and other intellectual property rights to use, host, store, disseminate, distribute, publicly display, reproduce, sublicense, post, or publish your Content (including your Apps) to promote and market our Site and Services, in which case we will not use so much of the App that it will act as a substitute for the App itself. You represent and warrant that the Content:
We do not endorse any Content or any opinion, recommendation, or advice expressed in any Content, and we expressly disclaim any and all liability in connection with any Content. We may decide whether any Content 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 Services 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 OR THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION WITH RESPECT TO SUCH CONTENT'S QUALITY, ACCURACY, OR RELIABILITY.
10. GENERAL RULES OF CONDUCT. It is our goal to make access to our Services a good experience for all of our users. You agree not to, and represent and warrant that you will not and your Admin Users and App Users will not:
11. TERMS APPLICABLE FOR APPS THAT HAVE CONSUMER APP USERS; APP TERMS OF SERVICE; PRIVACY. This Section 11 is applicable only to Apps that have Consumer App Users. "Consumer App Users" are App Users who are not your employees, independent contractors or agents.
(a) App Terms of Service. These Terms govern the relationship between Customers and Kinvey. These Terms do not govern the relationship between you and Consumer App Users of your App. You agree that each App made available to Consumer App Users will have a terms of service that disclaim any of Kinvey's liability and damages (including all direct, consequential, incidental, indirect, special and punitive damages) for the Consumer App User’s use or inability to use the App. As you are responsible for the acts and omissions of your Consumer App Users under these Terms, we also recommend that any such Terms of Service contain provisions similar to those in Sections 4, 5, 9 and 10. You indemnify and hold us harmless from any claims, damages and losses resulting from your breach of this section.
12. FEEDBACK. In the event that you provide us any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Site or the Services (collectively "Feedback"), including in response to any product plans or roadmaps we share with you, you agree we may use the Feedback to modify our Services and that you will not be due any compensation, including any royalty related to the product or service that incorporates your Feedback. You grant to us a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, 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. 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. To the extent you include personally identifiable information in public forums or blogs related to the Site, we will not be liable for such disclosure.
13. MODIFICATIONS TO THE SITE OR SERVICES. We reserve the right to modify the Site or Services from time to time, including modifications that constitute ongoing innovation to the Services in the form of new features, functions or efficiencies. Some modifications will be provided to you at no additional charge. In the event we add additional functionality to a particular Service, we may condition the implementation of such modifications on your payment of additional fees provided that you may continue to use the version of the Service that we make generally available (without such features) without paying additional fees. If you object to any such changes, your sole recourse will be to cease access to the Site or Services. Continued access to the Site or Services following notice of any such changes will indicate your acknowledgement of such changes and satisfaction with the Site or Services as so modified. You agree that we, in our sole discretion, may immediately terminate your access to the Site and Services at any time, for any reason. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE OR SERVICES. We will use reasonable commercial efforts to provide you thirty (30) days notice of any change to the Services that will require you to modify your Apps.
14. SECURITY; DISCLOSURE OF INFORMATION TO AUTHORITIES. We will take reasonable steps to help ensure the safety of your personal information. Please understand, however, that there is no such thing as "perfect security". You agree that our reasonable steps do not guarantee that the Services are invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities. Kinvey reserves the right to cooperate with local, state, provincial and national authorities in investigations of improper or unlawful activities and this may require the disclosure of your personal information. We may also report to other organizations about improper or unlawful user activities and this reporting may include disclosure of personal information relating to those individuals conducting such improper or unlawful activities.
15. THIRD PARTY SERVICES, CONTENT AND OTHER WEBSITES. Content or services provided by third parties may be made available to you through the Services. For instance, as noted above, you may be able to integrate your App with Data Sources. Your use of any third party services is governed by the Terms of the applicable service provider, not this Agreement. By accessing the third party service, you agree to comply with the applicable terms and acknowledge, that you, and not Kinvey, are party to such terms. In order to properly integrate your App with the third party service, including the Data Sources, Kinvey may require that you disclose to Kinvey your API key. You represent and warrant that providing the API key to Kinvey is not a breach of your agreement with the third party service provider. Kinvey will use the API key solely on your behalf to communicate with the third party service provider and in no event will Kinvey be construed to be a party to any third party provider terms.
In addition, if you are a visitor to the Site or Services, the Site and Services 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, currency, suitability or quality of services, content, products, materials, or practices (including privacy practices) of such third parties, including any Data Sources. Further, you understand that by using the Services, or if you use Apps that are developed and / or hosted by Kinvey, you may be exposed to third-party websites, content or Apps that you find offensive, indecent or otherwise objectionable. We make no warranty, representation, endorsement, or guarantee regarding, and accept no responsibility for, the quality, content, nature or reliability of the websites, products, services or Apps accessible by hyperlink or otherwise from the Services. We provide these links for your convenience only and we do not control such websites or Apps. Our use of third party services to power the Services, and our inclusion of links to such websites, does not imply any endorsement of the services or materials on such third party websites or any association with their operators. 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 ANY APPS HOSTED BY THE SERVICES OR THE WEBSITES, CONTENT, MATERIALS OR PRACTICES OF ANY THIRD PARTY.
16. CONFIDENTIAL INFORMATION. The "CI" of Kinvey will mean any and all technical and non-technical information disclosed by Kinvey to you during the term of this Agreement that is either identified by Kinvey as confidential or that a reasonable person would understand to be confidential. For purposes of clarification, you agree that Our Technology, and information about Our Technology, will be deemed CI of Kinvey. CI may include without limitation: (a) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (b) information regarding products, plans for research and development, roadmaps, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers; and (c) information regarding the skills and compensation of Kinvey employees, contractors, and other agents. You agree that you will: (i) hold in strict confidence and not disclose to any third party, any CI of Kinvey, except as specifically approved in writing by Kinvey; (ii) protect such CI with at least the same degree of care that you use to protect your own highly confidential CI, but in no case less than a reasonable degree of care; (iii) use CI for no purpose other than as specifically authorized herein; (iv) if you are an entity, limit access to the CI to those employees or authorized representatives having a need to know who have signed confidentiality agreements substantively as protective of Kinvey CI as these terms; and (v) immediately notify Kinvey upon discovery of any loss or unauthorized disclosure of CI. You will not reproduce CI in any form except as required to exercise your rights under these terms. Any copy of any CI remains the property of Kinvey and will contain all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by Kinvey. All CI will remain the property of Kinvey. Upon written request of Kinvey, you will promptly return to Kinvey all documents and other tangible materials containing any CI.
17. RELEASE. To the extent permitted under applicable laws, you hereby release Kinvey from any liability related to: (a) any Content or Software; (b) the conduct, whether online or offline, of any User or App User of an App; (c) any loss or damage caused by Content posted on the Services or transmitted by and to any App User of an App; and (d) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any App. If you are a California resident, you hereby waive California Civil Code Section 1542, which states: "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."
18. DISCLAIMER OF WARRANTIES. THIS SITE AND ALL CONTENT AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU, INCLUDING THE SOFTWARE, ARE PROVIDED BY Kinvey "WITH ALL FAULTS" AND ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. Kinvey MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE OR OUR CONTENT OR SERVICES INCLUDED ON, OR OTHERWISE MADE AVAILABLE TO YOU THROUGH, THIS SITE, UNLESS OTHERWISE SPECIFIED IN WRITING, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT AND ACCURACY. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK. We make no warranty that the Services will meet your requirements, or that the Services 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 Services, or that defects in the Services will be corrected. You understand and agree that you will be solely responsible for any damage to your computer or loss of data that results from the download of any material and/or our content. No advice or information, whether oral or written, obtained by you from us through the Site, Services, or otherwise will create any warranty, representation or guarantee not expressly stated in these Terms.
19. LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO THE SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL 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, THE SERVICES OR THE AGREEMENT.
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 SITE LINKED TO OUR SITE. OUR TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITE OR THE SERVICES IS LIMITED, IN AGGREGATE, TO THE TOTAL AMOUNT OF FEES PAID BY YOU TO Kinvey IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING SUCH CLAIM. 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.
WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL WE OR OUR LICENSORS BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, OR NON-PERFORMANCE OF THIRD PARTIES. 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.
20. 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 third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys' fees and court costs) that such parties may incur as a result of or arising from: (i) your use of the Site or Services, including the Software or any of your Content or Apps; (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 or your Content into the Site, Services or any App.
21. MODIFICATIONS. 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 or Services. 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. Continued use of our Site or Services following notice of such changes will indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
22. COPYRIGHT VIOLATIONS. We respect the intellectual property of others, and we ask you to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our copyright agent the following information:
Our copyright agent for notice of claims of copyright infringement on the Site or the Services can be reached by mail at: Copyright Agent, One Cambridge Center, 6th Floor, Cambridge, MA 02142, or by email at firstname.lastname@example.org.
23. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE.
(a) 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.
(b) 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").
(c) 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.
(d) 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.
(e) 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 Cambridge, Massachusetts. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Cambridge, 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 Cambridge, Massachusetts for such purposes. A request for interim measures will not be deemed a waiver of the right to arbitrate.
(f) 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 Cambridge, Massachusetts.
(g) 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.
24. 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 24 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 and Services. 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.
25. GENERAL TERMS. You are responsible for compliance with all applicable laws. The Terms and the relationship between you and Kinvey will 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. These Terms are personal to you, and you may not transfer, assign or delegate your right 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.
26. TERMINATION AND SURVIVAL. If you are Customer of Developer Edition, you may terminate your Account and the agreement under these Terms for any reason with thirty (30) days written notice. Customers of Enterprise Edition may terminate your Account and the Agreement under these Terms solely as provided in any Order Form. Except as provided in any Order Form, Kinvey may terminate your Account and the agreement under these Terms for any reason immediately. Upon any such termination, all rights granted to you under these Terms will immediately terminate, and you will (a) immediately cease using the Site or Services, and (b) pay all Fees for amounts incurred prior to termination. Upon any termination, Kinvey will have the right to terminate your Account and delete any and all Apps and Content, and Kinvey will not be liable to you or any third party (including, without limitation, App Users) for any termination of access to the Services or Apps, or deletion of Apps or Content. Termination will not affect any other remedies the parties may have. The following sections will survive termination: Sections 5, 9, 10, 12, 14 and 16 through 26, as well as any obligations to pay outstanding fees, other limitations on liability expressly provided, and any licenses that are expressly stated to be perpetual or survive this Agreement.
24. CONTACTING US. 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 email@example.com.
25. NOTICE; VIOLATIONS. 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 firstname.lastname@example.org or as otherwise expressly provided. Please report any violations of these Terms to email@example.com.
LAST UPDATED: August 4, 2013