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Terms of Use

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 to setup, use and operate a cloud backend for their 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 of Use") form a binding agreement between you and us, whether or not you register as a developer ("Developer") or browse the Site as a "Visitor" (collectively "Users"). "You" or "your" 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 bind such organization to these Terms of Use.

PLEASE READ THESE TERMS OF USE CAREFULLY. BY ACCESSING OR USING THE SERVICES YOU AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SERVICES. AS YOU ARE A DEVELOPER, OR FANCY YOURSELF TO BE ONE, 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 21.

1. KINVEY RESPONSIBITLIES TO DEVELOPERS. In the next few enumerated paragraphs, we're 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 of Use, we will provide you access to our great tools, which you can use to build Apps, and we will host the backend for your Apps. Once the App is built, 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 support@kinvey.com for certain limited support services in accordance with our standard policies and procedures. If you need additional support beyond our standard support, we may, from time to time, make such additional support available at additional cost. As further described in Section 13, you may have the ability to upload a script (the "Integration Script") through the Services that will enable your App to interact with , and retrieve information from, third party data providers, for example, Facebook, Twitter, and Yahoo! (each, a "Third Party Data Provider").  Subject to the terms and conditions of this Agreement, you hereby grant Kinvey a non-exclusive license to use and modify the Integration Script as necessary or desired to provide and improve the Services.  You represent and warrant that the use of the Integration Script will not impose 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.

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 will create a user ID and password and we will provide you with security protocols, policies, network links and connections (the "Access Protocols"). . 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).

3. USE OF YOUR ACCOUNT. Once you are registered you can begin using all of the great tools and services that we offer. But as your mother told you, with opportunity comes responsibility. For starters, we say: in using the Services, you must abide by all applicable local, state, national and foreign laws in connection with your use of the Services, 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. We mean it. We rely on the Access Protocols as a method to differentiate you from other users and to authenticate you. If someone else is using your Access Protocols, we will assume they are you and we'll give them access. You will be responsible for all activity carried out under your Account using your Access Protocols. If you know or suspect that someone has gained access to your Access Protocols, you agree to let us know. We'll turn off the compromised Access Protocols and issue you 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, changing your password, 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 of us 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.

4. OWNERSHIP. You understand and acknowledge that the software, code, proprietary methods and systems used to provide the Site or Services ("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. 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 and the prior written permission of our applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Technology. Nothing in these Terms of Use 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 of Use. 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.

5. RIGHT OF ACCESS. Subject to these Terms of Use, Kinvey hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable 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 of Use.

6. FEES. 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 (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 days to debit or charge your payment method, but we reserve the right to charge or debit your payment method each month within ninety 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 Company 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. The fees listed on the Site 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 and you authorize us to charge or debit your payment method the applicable tax in conjunction with your payment of the Fees.

7. RULES REGARDING APPS AND CONTENT. When we refer to your "Content," we mean all 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 or the end users of your Apps ("End Users"), whether through the Site or any App, and all information collected by your App. You are responsible for any Content submitted through the Site or Services. You will be entirely responsible for each individual item of Content provided by you or the End Users of your Apps 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 the End Users of your Apps through a separate terms of service as further defined in Section 9 below. You hereby grant us a non-exclusive, royalty-free, perpetual, fully paid, fully sublicenseable, 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: (a) performing the Services and (b) promoting and marketing our Site and Services, in which case we will use not use so much of the App that it will be act as a substitute for the App itself. You represent and warrant that the Content will not and does not:

  • Infringe the copyright, trademark, trade secret, or other intellectual property or proprietary right of others;
  • Violate the privacy, publicity, or other rights of third parties or any other law, statute, ordinance or regulation;
  • Is in violation of any applicable industry self-regulatory standards;
  • Violate your own privacy policy or collect information from End Users in any manner to which such End Users have not consented;
  • Be false or inaccurate or become false or inaccurate at any time;
  • Be unlawful, tortious, fraudulent, defamatory or harmful to minors, as determined by us in our sole discretion;
  • Misrepresent the source of the Content; Disclose or provide information protected under any law, agreement or fiduciary relationship, including but not limited to proprietary or confidential information of others;
  • Misrepresent your identity in any way;
  • Contain any viruses, Trojan horses, spyware. malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
  • Advocate or encourage any illegal activity; or
  • Have the potential to create liability for us or cause us to violate the requirements of or to lose the services, in whole or in part, of our Internet service providers or other suppliers.

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 of Use 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 OTHER DEVELOPERS 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.

8. 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 the End Users of your Apps will not:

  • Use, reproduce, duplicate, copy, sell, resell or exploit any portion of the Services or your use of the Services, for any purpose other than for which the Services are being provided to you;
  • Conduct or promote any illegal activities while using the Services;
  • Attempt to reverse engineer or jeopardize the correct functioning of the Services, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Services;
  • Promote or advertise any item, good or service that: (i) violates any applicable federal, state, or local law or regulation, (ii) violates the terms of service of any website upon which the Content is viewed, or (iii) Kinvey determines, in its sole discretion, is inappropriate to be promoted through the Services;
  • Collect, use or disclose data from End Users, or otherwise operate, in any way violating applicable industry self-regulatory standards or your own privacy policy;
  • Attempt to gain access to secured portions of the Services to which you do not possess access rights;
  • Upload or transmit any form of virus, worm, Trojan horse, or other malicious code;
  • Use the Services to generate unsolicited email advertisements or spam;
  • Use the Services to stalk, harass or harm another individual; Use any high volume automatic, electronic or manual process to access, search or harvest information from the Services (including without limitation robots, spiders or scripts);
  • Interfere in any way with the proper functioning of the Services or interfere with or disrupt any servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
  • Use any robot, spider, other automatic device, or manual process to extract, "screen scrape," monitor, "mine," or copy any static or dynamic web page on the Site or the Content contained on any such web page for commercial use without our prior express written permission;
  • Impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;or
  • Mirror or frame the Site or any Content, place pop-up windows over its pages, or otherwise affect the display of its pages.

9. APP TERMS OF SERVICES. These terms of service governs the relationship between Users and Kinvey. It does not govern the relationship between you and the End Users of your App or Kinvey and the End Users of your App. You agree that each App made available to End Users will have a terms of service that disclaims any of Kinvey's liability and damages (including all direct, consequential, incidental, indirect, special and punitive damages) for the End User's use or inability to use the App. As you are responsible for the acts and omissions of your End Users under this Terms of Service, we also recommend that any such Terms of Service contains provisions similar to those in Sections 4, 7 and 8.

10. 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 with 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.

11. MODIFICATIONS TO THE SITE OR SERVICES. We reserve the right to modify or discontinue the Services with or without notice to you, although we will use commercially reasonable efforts to give you at least sixty (60) days advance notice if we decide to discontinue the Services, We will not be liable to you or any third party should we exercise our right to modify or discontinue the Site and/or Services. 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, in our sole discretion. 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.

12. INFORMATION RIGHTS, PRIVACY AND SECURITY.

(a) Kinvey's Privacy Policy. Kinvey's information collection, use and disclosure practices with respect to personal information and End User information provided to us through your Apps are described more fully in our Privacy Policy. You grant us a non-exclusive, perpetual, worldwide and irrevocable right and license to collect, use and disclose the information as provided in our Privacy Policy. While there is no such thing as "perfect security" on the Internet, we will take reasonable steps to help ensure the safety of your personal information. However, you understand and agree that such 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.

(b) Your Privacy Policy. In conformance with applicable law and industry self-regulation, each of your Apps should make the appropriate disclosures regarding information (including personal information and any information collected from Third Party Data Providers) that the App collects, how it is used and how it is disclosed. These disclosures should include how Kinvey will use the personal information collected in your App as described in Kinvey's privacy policy. You acknowledge that, in conformance with applicable law or industry standards, your App may not collect certain types of sensitive information from End Users without an opt-in by such End Users, including, without limitation, information about children and adolescents, medical information, financial information and account numbers, Social Security numbers, sexual orientation information, government-issued identifiers, and precise geographic location.

13. 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, if you are a developer, you may be able to click on a link through the Services to select third party services with which your App can interface, including, without limitation, Third Party Data Providers.  Your use of such third party services is governed by the terms of use 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 Third Party Data Provider, 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 Third Party Data Providers.  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 includsion 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.  

14. 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 shall 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 (a) hold in strict confidence and not disclose to any third party, any CI of Kinvey, except as specifically approved in writing by Kinvey; (b) protect such CI with at least the same degree of care that you use to protect its own highly confidential CI, but in no case less than a reasonable degree of care; (c) 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. Your obligations under this Section 14 will survive termination of the agreement under these terms and continue in full force and effect. All CI will remain the property of Kinvey. Upon termination of agreement under these terms, or upon written request of Kinvey, you will (a) cease any use of CI; and (b) promptly return to Kinvey all documents and other tangible materials containing any portion of, or summarizing, CI and all copies thereof.

15. RELEASE. To the extent permitted under applicable laws, you hereby release Kinvey from any liability related to: (a) any Content; (b) the conduct, whether online or offline, of any User or End User of an App; (c) any loss or damage caused by Content posted on the Services or transmitted by and to any End 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."

16. 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, 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 of Use.

17. 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, PARENTS, SUBSIDIARIES, 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 OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SITE OR THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. 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. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES. 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. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW. 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.

18. 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 any Content or Apps you submit in connection with the Site or Services; (ii) a violation of these Terms of Use; (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.

19. MODIFICATIONS.

20. 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:

  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
  • A description of the copyrighted work that you claim has been infringed; A description of where the material that you claim is infringing is located on the Site or Services; Your address, telephone number, and email address;
  • A 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; and
  • 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.

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 copyright@kinvey.com.

21. 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 electronically. This Section 21 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 it were in a 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-waivable rights. You may also receive a copy of these Terms of Use 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.

22. GENERAL TERMS. You are responsible for compliance with all applicable laws. The Terms of Use 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. Any legal action, suit or proceeding arising out of or relating to the Terms of Use, or your use of the Site or Services must be instituted exclusively in the federal or state courts located in the Commonwealth of Massachusetts and in no other jurisdiction. You further consent to exclusive personal jurisdiction and venue in, and agree to service of process issued or authorized by, any such court. These Terms of Use are personal to you, and you may not transfer, assign or delegate your right and/or duties under these Terms of Use 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 of Use, shown in boldface type, are included only to help make these Terms of Use 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 of Use 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 of Use constitute the complete and exclusive agreement between you and us with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements. If for any reason a court of competent jurisdiction finds any provision of these Terms of Use, or portion thereof, to be unenforceable, that provision of the Terms of Use will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of these Terms of Use will continue in full force and effect.

23. TERMINATION AND SURVIVAL. You may terminate your Account and the agreement under these Terms of Use for any reason with thirty (30) days written notice. Kinvey may terminate your Account and the agreement under these Terms of Use for any reason immediately. Upon any such termination, all rights granted to you under these Terms of Use will immediately terminate, and you will (a) immediately cease using the Site or Services, and (b) pay all Fees under Section 6 for amount incurred prior to termination. Upon any termination, Kinvey will have the right to terminate your Account and delete any and all Apps Content, and Kinvey will not be liable to you or any third party (including, without limitation, End 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. Sections 3, 4 and 7 through 25, as well as any obligations to pay outstanding fees, other limitations on liability explicitly set forth herein and our proprietary rights in and to the Site, content provided by us, Our Technology and the Services, will survive the expiration or termination of these Terms of Use for any reason.

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 support@kinvey.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 support@kinvey.com or as otherwise expressly provided. Please report any violations of these Terms of Use to support@kinvey.com.

LAST UPDATED: July 10, 2012