AppNotch Terms of Service
Effective Date: August 1, 2015
AppNotch, LLC (“AppNotch”) operates an online service known as AppNotch (the “Service”) on the website located at www.appnotch.com (the “Site”) through which users may, among other things, publish and manage web and mobile applications (collectively, “Apps”) for use on various devices by other users (the “End Users”). Customers may access the AppNotch Site directly or via third parties. For example, Customers may visit the website through third party do-it-yourself website builders or other sub domain access points. All of which are included in (the “Site”).
These AppNotch Terms of Service (collectively, “Terms of Service”) set forth the terms and conditions under which you may access and use the Service (in its current form and after any changes are made). These Terms of Service apply to (1) any organization that is, or is becoming, registered with the Service (each a “Company”) to create an Account to use the Service (a “Company Account”), (2) any individual user of an account issued under a Company Account (each an “Authorized User”), and (3) any individual user of an account issued directly to that individual (each a “Registered User”). “You” as used in these Terms of Service refer to any Authorized User or Registered User.
Acceptance of terms:
By using the SITE AND/OR Service, you agree to be bound by the terms OF SERVICE. If you are ESTABLISHING a COMPANY account, YOU REPRESENT TO APPNOTCH THAT YOU HAVE AUTHORITY TO BIND such COMPANY TO THESE TERMS OF SERVICE, and you agree to these terms of service on behalf of the company and on behalf of yourself. All Apps built or published by you using the Service (including all Apps published in an app store, whether published by you or by AppNotch on your behalf) must comply with all applicable Terms of Service and other AppNotch rules and guidelines. AppNotch reserves the right to update and change these Terms of Service from time to time at its sole discretion without notice to you. If AppNotch modifies or changes these Terms of Service, it will also revise the “Effective Date” at the top of this page. It is your responsibility to review the Terms of Service so you are aware of any changes or updates. Continued use of the Site and/or Service after any such changes shall constitute your consent to such changes.
Please read the Terms of Service very carefully. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, DO NOT REGISTER WITH, ACCESS OR USE THE SITE OR THE SERVICE. BY REGISTERING WITH, ACCESSING OR USING THE SITE AND/OR SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE.
PLEASE NOTE THAT, NOTWITHSTANDING ANYTHING CONTAINED IN THESE TERMS OF SERVICE OR ON THE SERVICE OR SITE TO THE CONTRARY, THE SERVICE IS PROVIDED WITHOUT ANY WARRANTIES AND SUBJECT TO LIMITATIONS ON APPNOTCH’S LIABILITY. THESE TERMS ARE CONTAINED IN SECTIONS 12 AND 13 BELOW.
1.1. License: Conditioned upon and subject to your strict compliance with these Terms of Service, AppNotch grants you a personal, non-exclusive, non-transferable, limited license to access and use the Site and the features of the Service to create, publish and manage web and mobile applications, in each case (i) to the extent the applicable functionality is made available to you from time-to-time, and (ii) through the provided functionality of the Service, subject to earlier termination as set forth in these Terms of Service. If your User Account is terminated by AppNotch or Company, or if you have not been issued a User Account by AppNotch or Company, you do not have a license to use the Service.
1.2. Information Provided: If you provide any information to us, you agree to provide only true, accurate, current and complete information. If you provide information to us about any third party, including, but not limited to, personally identifiable information, you represent and warrant that you are specifically authorized to provide such information to us so that we may use, process and transfer such personally identifiable information, and you assume all responsibility for dissemination and use of the information provided.
2. Accounts & The Service
General: Portions of the Service available to different users of the Service may vary. No user has access to all portions of the Service. You agree not to use or access, or attempt to use or access, any portion of the Service for which you are not intentionally given access to by us. You must be 13 years or older to use this Service. You must be a human; Accounts registered by “bots” or other automated methods are not permitted. You must provide your legal full name, a valid email address, and any other information requested in order to complete the signup process. You are responsible for maintaining the security of your account and password. AppNotch cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You are responsible for all Content posted and activity that occurs under your account (even when Content is posted by others who have access to your account). You may not use the Service for any illegal or unauthorized purpose. You must not, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
2.1. User Accounts: Company may be issued a Company Account that consists of one or more User Accounts. If you are an Authorized User or Registered User, your account may be referred to as “User Account”. No person shall have more than one (1) User Account.
2.2. Access to Your User Account: You agree to protect your username and password by, among other things, keeping your username and password confidential. If, notwithstanding the foregoing obligation, you allow another party to use your username and/or password to access your User Account, you will be responsible for all use by that party using your User Account. You agree to (a) immediately notify AppNotch of any unauthorized use of your password or any other breach of security, and (b) ensure that you exit from your User Account at the end of each session.
2.3. Any use of a User Account comprising a Company Account shall be considered a use of such Company Account: Each User Account must be designated for use by a named individual, and Company may allow only such named individual to use the User Account designated for him or her. If an Authorized User is no longer authorized by Company to use and access a User Account, Company shall deactivate such User Account. Company will be responsible for all access to, and use of, the Service by an Authorized User (and anyone that uses and/or accesses the Service through a User Account comprising your Company Account) and for any damage we incur as a result of any act, error, or omission of any Authorized User (and anyone that uses and/or accesses the Service through a User Account comprising your Company Account). Any breach of this Agreement by an Authorized User (and anyone that uses and/or accesses the Service through a User Account comprising your Company Account) shall be considered a breach by Company.
3. Suspension, Termination and Modification of the Service/User Accounts
3.1. The Service: AppNotch reserves the right at any time and from time to time to modify, suspend, discontinue and/or restrict the use of all or any portion of the Site and/or Service, temporarily or permanently, at any time with or without notice. Any information posted by AppNotch on the Site or Service can be changed without prior notice. AppNotch can also make changes regarding services or products that are available on the site without prior notice.
3.2. Termination or Suspension of Access to and Use of the Service: AppNotch may, in its sole discretion, terminate, suspend or disable your access to, and/or use of, the Site and/or Service (including your User Account), or any portion thereof, at any time, with or without notice and for any reason (or no reason) including, without limitation, if (a) it believes that you are infringing, or have infringed, the intellectual property rights of others or are aiding or threatening, or have aided or threatened, such infringement, (b) it suspects any illegal activity, (c) there has been an extended period of inactivity on your User Account, (d) it receives a request from law enforcement or other government agencies, (e) it reasonably believes you have violated the Terms of Service, or (f) you owe any overdue subscription or other fees.
You agree that if your authorization to access or use the Site and/or Service is terminated or disabled, you will not thereafter enter, or attempt to enter, the Service, directly or indirectly, and if your authorization to enter the Site and/or Service is suspended, you will not thereafter enter, or attempt to enter, the Service, directly or indirectly, until your suspension is removed and AppNotch gives you express notice thereof.
3.3. Effect of Termination/Deletion of User Content: Termination of the Service and/or your User Account will result in deletion of your User Content and any other information in or associated with your User Account (such as your e-mail address and password).
3.4. Refusal of Services: AppNotch reserves the right to refuse access to and use of the Site and/or Service to anyone for any reason at any time. AppNotch’s termination of your authorization to access and/or use the Site and/or Service may also bar you from any future use of the Site and/or Service.
3.5. No Liability: AppNotch shall not be liable to you or to any third party for any modification, suspension, discontinuance or termination of the Service or any portion thereof, and/or your ability to access and/or use the Service.
4.1. General: Subscriptions to paid Services (such as subscriptions for the hosting and management of Apps) (each a “Subscription”) are available for a term of one month or one year (each a “Subscription Period”), and shall automatically renew at the end of each Subscription Period for successive periods of one month or one year, as applicable, (each a “Renewal Period”) unless either party gives the other party notice of its intention not to have the Subscription renew at least seven (7) days prior to the end of the then-current Subscription Period or Renewal Period. If you do not wish to renew your Subscription(s), send an email to email@example.com specifically (a) requesting cancellation of your Subscription, and (b) identifying the email address associated with your User Account Any such termination shall be effective (a) upon the date set forth in your cancellation request, provided that such date is prior to or on the last day of the then-current Subscription Period or Renewal Period, or (b) if no such date is specified, at the end of the then -current Subscription Period or Renewal Period. You are solely responsible for properly canceling your Subscription(s).
4.2. Upgrades/Downgrades: The Service may, during the term of your Subscription, permit you to upgrade to a different subscription plan with additional benefits/features or downgrade to a different subscription plan with fewer benefits/features. Downgrading your Subscription plan may cause the loss of User Content, features, or capacity of your User Account. AppNotch does not accept any liability for such loss.
Termination or Suspension of Subscription by Us: AppNotch may, in its sole discretion, terminate or suspend your Subscription(s), at any time, with or without notice and for any reason (or no reason) including, without limitation, for non-payment or delinquency in payment of any fees, or if we believe that you are infringing, or have infringed, the intellectual property rights of others or are aiding or threatening, or have aided or threatened, such infringement. Any termination by us shall be effective on the date specified in such notice or, if no date is provided, shall be effective immediately. You agree that, if your Subscription is terminated, you will not thereafter enter, or attempt to enter, the Service, directly or indirectly, and if your Subscription is suspended, you will not thereafter enter, or attempt to enter, the Service, directly or indirectly, until your suspension is removed and AppNotch gives you express notice thereof. Furthermore, you are solely responsible for properly canceling your account. All of your Content will be deleted from the Service upon cancellation. This information cannot be recovered once your account is cancelled. If you cancel the Service before the end of your current paid up month, your cancellation will take effect immediately and you will not be charged again. AppNotch, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Service, or any other AppNotch service, for any reason at any time. Such termination of the Service will result in the deactivation or deletion of your Account or your access to your Account, and the forfeiture and relinquishment of all Content in your Account. AppNotch reserves the right to refuse service to anyone for any reason at any time.
4.3. Effect of Termination of Subscription: Upon termination of your Subscription, (a) you lose access to the Service, and (b) AppNotch may, in its sole discretion, immediately delete all User Content. User Content cannot be recovered after your Subscription is terminated. Notwithstanding the foregoing, AppNotch reserves the right to retain and use such User Content as necessary to comply with its legal obligations, resolve disputes and enforce the Terms of Service.
5. Fees and Payments:
Information about the subscription plans and fees for all paid Services is available at the time of Checkout on our Checkout page. AppNotch reserves the right to change the applicable fees and to begin charging for use of Services that are currently available free of charge. In the event that AppNotch changes its fees, it will post the new fee information on the Service. AppNotch shall not be liable to you or to any third party for any fee change. Furthermore, a valid credit card is required. 100% Satisfaction Guaranteed Policy / Refund Policy: AppNotch is backed by a 100% satisfaction guarantee. This guarantee does not apply to months after a full month of service has passed and only applies to the initial 30 days service with AppNotch per section 5.3. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes. AppNotch will use commercially reasonable efforts to have the application approved by the appropriate mobile platform provider or app store(s). Although there is a high likelihood of approval, we do not and cannot guarantee acceptance. If your application is denied by the appropriate mobile platform provider you may cancel your account, however there are no refunds for Create / Setup fees under any circumstances.
5.1. Subscription Fees: Subscription fees are billed in advance on a monthly basis or a yearly basis (as applicable, depending on whether you have a monthly subscription or a yearly subscription) and are non-refundable. The first payment is due on the first day of the applicable Subscription Period, and subsequent payments are due on first day of each Renewal Period, or such other date as agreed to by AppNotch in writing.
5.2. App Create / Setup Fee: The fee to convert a website to an app is the “App Create/Setup Fee”. The App Create/Setup Fee is due for each app on the date that such app is created/setup using the Service. This App Create/Setup Fee shall be charged at the time the Customer proceeds through the Checkout process.
5.3. 100% Satisfaction Guaranteed Policy / Refund Policy: If for whatever reason you are unsatisfied with your mobile application within the first 30 days after paying for the service, AppNotch guarantees to refund the your payment with no questions asked. It is your obligation to notify by email to firstname.lastname@example.org within 30 days after paying for the service to request your refund. No refunds shall be paid or due to you if you do not request the refund by email within 30 days of you paying for the service. AppNotch is backed by a 100% satisfaction guarantee.
5.4. Taxes: All fees payable under these Terms of Service are exclusive of all sales, use, value-added, withholding, and other taxes, levies, and duties. You will promptly pay, and indemnify AppNotch against, all taxes and duties assessed in connection with (a) any such amounts, (b) these Terms of Service, and (c) performance hereunder by any authority within or outside of the U.S., except for taxes payable on AppNotch’s net income.
5.5. Payments for Upgrades/Downgrades: If you upgrade or downgrade your Subscription plan level, the credit card that you provided will automatically be charged the fee for your new Subscription plan on your next billing cycle.
5.6. Overdue Amounts: AppNotch may charge you interest on the outstanding balance of any amounts overdue hereunder at a rate equal to 1.5% per month (19.56% per annum) or the highest rate permitted by applicable law, whichever is lower. You will reimburse AppNotch for all reasonable costs and expenses incurred (including, without limitation, reasonable attorneys’ fees) in collecting any overdue amounts.
5.7. Payment Methods: All amounts payable hereunder must be made in U.S. dollars. You shall make all payments via credit card, debit card or by other means that we may permit from time-to-time. If you have a Subscription you must provide AppNotch with a valid credit card number.
5.8. Credit Card Payments: If you use a credit card or debit card to make any payment, you hereby agree that AppNotch (or its applicable payment processor) is authorized to charge that card on the applicable due date for subsequent fees owed to AppNotch. If AppNotch (or its applicable payment processor) does not receive payment from the applicable card issuer or its agents, or if payment made by other permitted means is not honored, you agree to pay all amounts due immediately upon demand. You agree to keep the credit card or debit card information and your billing address updated at all times, and to only use a debit or credit card that you are authorized to use. If you would like the payment for the renewal to be made through a different credit card or debit card, you agree to inform us at least seven days prior to the end of the then-current Subscription Period or Renewal Period.
6. Submissions to App Store(s)
6.1 The Service may, from time to time, allow you to submit your App(s) to an app store using AppNotch’s account for that app store. In the event you submit your App(s) to an app store using AppNotch’s account, AppNotch reserves the right to remove your Apps from any app store(s) at any time for any reason.
6.2 Alternatively, the Service may, from time to time, allow you to submit your App(s) to an app store using your own account for that app store.
6.3 You may choose to offer your Apps for free through any app store(s) or to charge for them. In the event you choose to charge for your Apps, AppNotch will submit your Apps to the app store(s) based on your credentials. Customers must provide AppNotch with their credentials for each app store submitted in such case. AppNotch will not take any responsibility for and does not provide any guarantee that your App(s) will be approved by any app store(s).
6.4 Before submitting your App(s) to any app store(s), you shall read all applicable terms and conditions. If you do not understand all such terms and conditions, you shall not submit your Apps to any app store(s) using the Service.
6.5 Prior to any of your Apps being published in an app store(s), you agree to pay the App Create/Setup Fee. AppNotch will submit to the app store(s) requested by you, but does not guarantee that the app store(s) will accept the app publish submittal.
6.6 As of July 1st, 2017, AppNotch no longer submits single domain apps to the Apple iTunes App Store. Apps that were submitted to the Apple iTunes App Store prior to July 1st, 2017 will continue to be supported excluding re-submissions. AppNotch will continue to submit Multitenant apps to the Apple iTunes App Store.
7. Beta Service
AppNotch may offer certain Services in a closed or open beta services model for the purpose of testing and evaluation. You agree that AppNotch has the sole authority and discretion to determine the period of time for testing and evaluation of such Services. We will be the sole judge of the success of such testing and the decision, if any, to offer the beta services as commercial services. You will be under no obligation to acquire a subscription to use any paid Service as a result of your subscription to any beta service. We reserve the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the beta services with or without notice to you. You agree that AppNotch will not be liable to you or to any third party for any harm related to, arising out of, or caused by the modification, suspension or discontinuance of any of the beta services for any reason.
8.1. Use of the Service: You agree not to enter or use the Site and/or Service for any purpose that is not expressly permitted by these Terms of Service, or that is otherwise unlawful or impairs the operation of the Site and/or Service or its availability or usage by others. You further agree to comply with all applicable laws, statutes, ordinances, regulations, contracts and licenses regarding your use of the Site and/or Service including, without limitation, those applicable to the Internet, e-mail, privacy, copyrights and trademarks, data and, if applicable, the transfer of data from the country in which you reside, and any regulations promulgated by the U.S. Securities and Exchange Commission, and rules of any national or other securities exchange.
8.2. Restrictions: You agree not to use the Site and/or Service to upload, post or transmit material that is unlawful, defamatory, libelous, invasive of privacy, abusive, threatening, harassing, tortious, hateful, racially or ethnically objectionable, harmful, vulgar, pornographic, sexually explicit, obscene, or otherwise objectionable, offends religious sentiments, promotes racism or illegal activity, contains viruses, or that infringes or may infringe intellectual property or other rights of another. You agree not to use the Service for the transmission of junk mail, spam, chain letters, phishing, or unsolicited mass distribution of email.
8.3. Conduct: You, and not AppNotch, are entirely responsible for all User Content that you upload, post or otherwise transmit via the Service. You are entirely responsible for, among other things, ensuring that (a) you have obtained all necessary legal rights and/or permissions to upload, post or otherwise transmit User Content via the Service, and (b) any User Content that you upload, post or otherwise transmit via the Service complies in all respects with the Terms of Service. AppNotch does not control the User Content uploaded, posted or transmitted via the Service and, as such, does not guarantee the accuracy, integrity, or quality of such User Content, including but not limited to business endorsements and commentary. In your use of the Service and/or Site, you agree not to:
- Upload false or intentionally misleading information
- Provide any User Content that falsely states or implies that such User Content is sponsored or endorsed by AppNotch
- Harm minors in any way, or seek or recommend others or material that exploit people under the age of 18 in a sexual or violent manner, or seek or recommend others or material that solicit personal information from anyone under 18
- Impersonate any person or entity, including, but not limited to, an AppNotch official, forum leader, guide, or host, or falsely state or otherwise misrepresent your affiliation with a person or entity
- Forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content, or develop restricted or password-only access pages, or hidden pages or images (those not linked to/from another accessible page)
- Upload, post, or otherwise transmit any User Content that you do not have a legal right to upload, post or transmit under any applicable law or contractual or fiduciary relationship (such as insider information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements)
- Remove any copyright, trademark, or other proprietary rights notice
- Upload, post, or otherwise transmit any material that contains software viruses, worms, defects, Trojan Horses or any other computer code, files, or programs of a destructive nature designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment
- Interfere with or disrupt the Service or Site or servers or networks connected to the Service, use any device, software, or routine that interferes with the proper working of the Service or AppNotch Site, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service
- Stalk or otherwise harass another user or individual
- Collect, harvest, or store personal data about other users for any reason
- Use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve or index any portion of Site and/or Service
- Create or submit unwanted email or messaging (Spam) to any other user or otherwise interfere with the enjoyment of other users of Site or the Service
- Modify, adapt, sub-license, translate, sell, decompile, disassemble, or reverse engineer any portion of the Site / Service
- Access, retrieve, or index any portion of the Site and/or Service for purposes of constructing or populating a searchable database
- Reformat or frame any portion of the web pages that are part of Site and/or Service
- Create User Accounts by automated means or under false or fraudulent pretenses
- Use the Site or Service to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material, or take any action that affects the user’s experience, including, without limitation, taking any action that imposes or may impose, in Company’s sole discretion, an unreasonable or disproportionately large load on the Service or AppNotch’s IT infrastructure
- Violate any rules or regulations of the Google Play or iTunes App Store
- Copy or store any User Content offered on the Site or Service for other than your own use
You understand and agree that AppNotch may review and delete any Apps or other User Content that in its sole judgment AppNotch feels violates these Terms of Service or which might be offensive, illegal, or that might violate the rights of, harm, or threaten the safety of other users of the Site and/or Service or others. In addition, you agree that all hyperlinks and other offers comprising the Service (e.g., hyperlinks provided in connection with AppNotch’s RSS feeds) may not be modified from the original form in which such hyperlinks and other offers are generally made available by AppNotch
9. User Content
9.1. AppNotch User Content – Samples: AppNotch at times may provide templates, sample files, sites, examples, applications and other materials and content (collectively, “Samples”) for the purpose of demonstrating how to use the Service. The information contained in any such Sample consists of random data. AppNotch makes no representation or warranty, either express or implied, as to the accuracy, usefulness, completeness or reliability of the Samples or information therein.
9.2. User Content: Any content that you upload, post or otherwise transmit using the Service, and in connection with your Apps may be referred to as “User Content”. User Content may include, without limitation, custom code. AppNotch does not claim ownership of the User Content.
9.3. No Liability for User Content: You are solely responsible for all User Content and the consequences of uploading, posting and/or transmitting such User Content. This includes content created by you in your converted website or content that you may link to within the AppNotch App Menu. You agree that you must evaluate, and bear all risks associated with, the use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such User Content. We shall not be liable for any use or misuse of any User Content. You will indemnify AppNotch of all legal or civil complaints and judgements resulting from inappropriate or illegal content provided or submitted to AppNotch.
10. No Confidential or Third Party Information:
You agree not to upload, post or transmit any confidential or proprietary information using the Service that you desire or are required to keep confidential. Any content published as part of an App may be crawled and indexed by search engines and will be publicly accessible. You agree not to upload, post, use, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise exploit any content that belongs to others for any purpose, unless you have obtained permission to do so from the owner(s) of all rights in and to any such content. By posting, uploading, transmitting or otherwise making any User Content available in your App, you represent and warrant that you either own such User Content or you have the consent, authorization or permission from every person who may claim any rights to such User Content. You agree to indemnify AppNotch against any complaints or claims to AppNotch in reference to your violation or non-compliance with this Section.
We claim no intellectual property rights over the material you provide to the Service. Your profile and materials uploaded remain yours. However, by using the AppNotch Service to create your mobile application, you agree to allow others to view and share your Content. AppNotch does not pre-screen Content, but AppNotch and its designee have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. All rights reserved, You may not duplicate, copy, or reuse any portion of the AppNotch HTML/ CSS or other code or visual design elements without express written permission from Appnotch. AppNotch may make certain software available to you through the Service. If you download or otherwise use the software from the Service, the software, including all files and images contained in or generated by the software, look and feel, HTML/CSS, visual design elements, and accompanying data (collectively, “Software”) are deemed to be licensed to you by AppNotch, for your personal and noncommercial use only. AppNotch does not transfer either the title or the intellectual property rights to the Software, and AppNotch retains full and complete title to the Software as well as all intellectual property rights therein. You may not sell, redistribute, or reproduce the Software, nor may you decompile, reverse-engineer, disassemble, or otherwise convert the Software to a human-perceivable form. You grant AppNotch a license to use the materials you post to the Services. By posting, downloading, displaying, performing, transmitting, or otherwise distributing user content to the Service, you are granting AppNotch its affiliates, officers, directors, employees, consultants, agents, and representatives a license to use user content in connection with the operation of AppNotch, its affiliates, officers, directors, employees, consultants, agents, and representatives, including without limitation, a right to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat user content. You will not be compensated for any user content. By posting user content on the Service, you warrant and represent that you own the rights to the user content or are otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute user content. When accessing or using the Services, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Services is at all times governed by and subject to laws regarding copyright, trademark, patent, and trade secret ownership and use of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any information or content in violation of any party’s copyrights, trademarks, patents, trade secrets, or other intellectual property or proprietary rights. You agree to abide by laws regarding copyright, trademark, patent, and trade secret ownership and use of intellectual property, and you shall be solely responsible for any violations of any laws and for any infringements of any intellectual property rights caused by any content you provide, post, or transmit, or that is provided or transmitted using your user name or user ID. The burden of proving that any Content does not violate any laws or intellectual property rights rests solely with you. All AppNotch content included on its site, its Software, and through the Service is the property of AppNotch and is protected by U.S. and international intellectual property laws. All AppNotch content, Software, code, HTML/CSS, and visual design data is copyright 2015 AppNotch, LLC.
11.1. Content Available via the Service: You agree not to use User Content of third parties or any content of AppNotch without the express written consent of the person who owns the rights to such content.
11.3. Representations/Warranties: By uploading, submitting or transmitting User Content on the Site or otherwise through the Service, you:
- Grant to AppNotch a perpetual, fully assignable, non-exclusive, royalty-free, sub-licensable license to access, use, reproduce, publicly display, perform, adapt, transmit, create derivative works from, and distribute such User Content in any form, and as deemed appropriate by AppNotch, (a) for the purpose of providing the Service, both to you and others, including as part of your User Account and Apps; and (b) on the Site and elsewhere to provide examples of Apps that have been created using the Service.
- Represent and warrant to AppNotch that you own all rights to the User Content or have the right to upload, submit or transmit such User Content using the Service (including through your User Account and any Apps), and have the right to grant AppNotch the licenses granted herein, and that AppNotch’s exercise of such rights (including without limitation, publishing User Content as part of the Service (including any App(s)) will not infringe or violate the rights of any third party;
- Authorize AppNotch to use your name, likeness, and trademarks for the purposes of promoting AppNotch, the Service, and/or the Site;
- Authorize AppNotch to place AppNotch’s logo in a prominent position on any Apps published by AppNotch via an app store;
- Agree not to defame or disparage AppNotch in any way; and
- Acknowledge that the User Content may not be treated confidentially.
12. Cookies, Pixels & Similar Technologies:
We use Technologies like cookies, pixel tags (“pixels”), device or other identifiers and local storage (collectively, “Cookies and similar technologies”) to deliver, secure, and understand products, services, and ads, on and off the AppNotch Services. We offer a range of products and features that involve the use of these technologies to reach you and your users based on your activity on and off our Services. The Services may or may not include advertising products. As described in more detail below, we also use these technologies in other ways, like for security purposes, to deliver and enable products and services, as well as to understand and measure products, services and advertisements. Third parties that you interact with as you use the AppNotch Services may also use these technologies for a variety of purposes. Your browser or device may offer settings related to these technologies. For more information about whether these settings are available, what they do, and how they work, visit your browser or device’s help material. We may not recognize or respond to browser or device signals around tracking, and some settings may interfere with your use of features we offer. Additionally, the settings offered by a browser or device often only apply to that particular browser or device. Cookies are small files that are placed on your browser or device by the website or app you’re using or ad you’re viewing. Pixel tags (also called clear GIFs, web beacons, or pixels) are small blocks of code on a webpage or app that allow them to do things like read and place cookies and transmit information to us or our partners. The resulting connection can include information such as a device’s IP address, the time a person viewed the pixel, an identifier associated with the browser or device and the type of browser being used. Local storage is an industry-standard technology that allows a website or app to store and retrieve data on a person’s computer, mobile phone or other device. Some examples include device or HTML5 local storage and caching. We use these technologies for a variety of reasons, such as allowing us to show you content and advertising that’s most relevant to you; improving our products and services; and helping to keep our Services secure. While specific names of the Cookies and similar technologies that we use may change from time to time as we improve and update our Services, they generally fall into the below categories of use:
12.1 Authentication: These technologies tell us when you’re logged in, so we can show you the appropriate experience and features. For example, Cookies and similar technologies tell us when you or your users have logged into AppNotch or your app, so we can show you relevant information when you visit other websites or apps that use our Service, links or plugins. We also use this information to understand how you use our Services.
12.8 Analytics and Research: These are used to understand, improve, and research products and services, including when you access AppNotch Services or other websites and apps from a computer or mobile device.
12.12 When might we read the cookies on your computer or device? Web browsers send any cookies for a particular web domain (ex: appnotch.com ) to the website each time a machine with those cookies accesses content served from that domain. This means that any AppNotch.com cookies will be sent to AppNotch when any page is accessed at AppNotch.com by that machine. It also means that these cookies are sent to AppNotch when someone accesses a third-party website or application that integrates or uses our Services, like one of our plugins. Sometimes we work with websites, apps and their partners so that we can place or read AppNotch cookies on your browsers or devices when you visit third-party services. This allows us to do things like read and reference cookies from more than one device or browser that you use, on and off of our Services, so we can provide AppNotch Services across all of your devices and improve the products, ads and services we offer to you and others.
- Network Advertising Alliance
- Digital Advertising Alliance
- European Interactive Digital Advertising Alliance
- Digital Advertising Alliance of Canada
- Internet Advertising Bureau (US)
- Internet Advertising Bureau (EU)
We may work with advertising companies to help advertisers show people ads based on other websites or apps those people have visited, among other factors. This helps us show you more useful and relevant ads. For example, if an advertiser is promoting an airline sale to Florida, they might want to show their ad to people who recently visited websites or apps related to traveling to Florida. We work with an advertising company to help that advertiser show the airline sale ad those people. We also authorize certain companies that provide service to advertisers to measure the impact of the advertiser’s ads on AppNotch Services and your apps, but only where they agree to restrictions on how they can use the info they collect.
Here is more information about some of the companies advertisers use and the choices they offer:
- General information: http://atlassolutions.com/home
- Choices: https://choice.live.com/AdvertisementChoice/Default.aspx
- Bloom Digital
- General information: http://bloom-hq.com/
- Choices: http://adgear.com/privacy/
- General information: http://www.google.com/doubleclick/index.html
- Choices: http://www.google.com/policies/privacy/ads/
- General information: http://www.flashtalking.com/
- Choices: http://www.flashtalking.com/ftCookieOptOut.html
- General information: http://www.groupm.com/
- Choices: http://www.groupm.com/privacy-policy
- General information: http://www.mediamind.com/
- Choices: http://www.mediamind.com/privacy-policy
- General information: http://www.mediaplex.com/
- Choices: http://www.mediaplex.com/opt-out
- General information: http://www.pointroll.com/
- Choices: http://www.pointroll.com/privacy.php
- General information: http://trueffect.com/
- Choices: http://ad.adlegend.com/TE_optout.html
- General information: http://weborama.com/
- Choices: http://weborama.com/2/page-en-confidentialite.html
You agree to indemnify and hold harmless AppNotch, its members, directors, subsidiaries, vendors, clients, associates, agents, affiliates, officers, directors, co-branders or other partners, and employees (collectively, “Indemnified Parties”), harmless from and against any claim, losses, damages, or expenses (including reasonable attorneys’ fees) and costs, incurred by any Indemnified Party in connection with any claim arising out of (a) your User Content, (b) your access to and/or use of the Site and/or Service, (c) your violation, or alleged violation, of these Terms of Service, or (d) your violation, or alleged violation, of any rights of another, including without limitation any intellectual property or privacy rights.
14. Disclaimer of Warranties:
You expressly acknowledge and agree that your use of the Site and Service is at your sole risk. The Site and Service are provided on an “AS IS”, “WITH ALL FAULTS”, and “AS AVAILABLE” basis. AppNotch makes no representations or warranties relating to the Site and/or Service including, without limitation, representations or warranties that (a) the Site and/or Service shall meet your requirements, (b) the operation of the Site and/or Service will be uninterrupted or error free, (c) the Site and/or Service will be secure; or (d) any defects in the Site and/or Service will be corrected. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPNOTCH HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND/OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES (A) OF MERCHANTABILITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT APPNOTCH KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), (B) REGARDING THE ACCURACY, TIMELINESS, COMPLETENESS, RELIABILITY OR PERFORMANCE OF THE SITE, SERVICE OR ANY FEATURE THEREOF OR INFORMATION THEREON, (C) AS TO WHETHER THE SITE AND/OR SERVICE SHALL MEET YOUR REQUIREMENTS, OR IS, OR SHALL BE, UNINTERRUPTED OR ERROR FREE, (D) AS TO WHETHER ANY DEFECTS IN THE SITE AND/OR SERVICE WILL BE CORRECTED. WE HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES AND/OR REPRESENTATIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPNOTCH FURTHER DISCLAIMS ANY AND ALL WARRANTIES, AND/OR REPRESENTATIONS OF QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SITE AND SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. You understand that the Site and Service are based on Internet delivery. This means that at times the Site and/or Service may be interrupted for infrastructure maintenance, upgrades and enhancements, and for other reasons. Additionally, the Site and/or Service may be interrupted because of interruptions in Internet availability. In all of these cases, you agree not to hold AppNotch liable for such interruption. If you use the Site, Service or any software of AppNotch, you are solely responsible for any possible loss or damages including loss of data.
15. Limitation of Liability:
EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT WILL APPNOTCH BE LIABLE FOR (A) ANY DAMAGES OF ANY NATURE WHATSOEVER RESULTING FROM, OR RELATED TO, THE LOSS OF ANY USER CONTENT OR ANY OTHER DATA OR INFORMATION CAUSED BY THE SITE OR SERVICE, OR THE DELAY OR INABILITY TO USE THE SITE OR SERVICE, (B) CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION WITH RESPECT TO THE SITE OR SERVICE, AND/OR (C) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS OF SERVICE AND/OR OTHERWISE ARISING OUT OF THE USE OR PERFORMANCE OF THE SITE OR SERVICE, IN EACH OF (A), (B) AND (C) ABOVE WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE AND EVEN IF APPNOTCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ALL EVENTS, APPNOTCH’S AGGREGATE LIABILITY FOR CLAIMS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS OF SERVICE AND/OR THE USE OR PERFORMANCE OF THE SITE (INCLUDING, WITHOUT LIMITATION, THE SERVICES) WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE SHALL BE LIMITED TO $10. Some jurisdictions do not allow the disclaimer of some types of damages, so some of the above may not apply to you.
AppNotch shall not be responsible or liable for any breaches of third party agreements for Apps built or published by you. You agree to Indemnify AppNotch according to Section 10 for any breaches related to this Section.
16.1. Links to External Sites: The Site or Service may provide links to third party websites and/or resources. Such links are provided for your reference only. The inclusion of links to such web sites does not imply any sponsorship, affiliation or endorsement of the material on such web sites or with their operators. Because AppNotch has no control over such sites and resources, you acknowledge and agree that AppNotch is not responsible for the availability of such external sites or resources, and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. YOU FURTHER ACKNOWLEDGE AND AGREE THAT APPNOTCH SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON ANY SUCH SITE OR RESOURCE.
16.2. Linking to the Service: Subject to the further provisions of this section, AppNotch welcomes links to the Service from other web sites. If AppNotch demands that you not link to the Service, or any portion of the Service, you agree that you will not, directly or indirectly, link to the Service or such portion of the Service as directed in our demand, at any time after such demand is made.
17. Intellectual Property
17.1. General: Except for User Content and content that is in the public domain, the Site and Service and all content, as well as the selection and arrangement of the content, is owned by (or licensed to) AppNotch or its licensors and is protected by copyright, trade dress, trademark, unfair competition, and/or other laws and may not be used, copied or imitated in whole or in part except as expressly provided herein. Except as otherwise expressly provided in these Terms of Service, all rights in and to the Site and Service are expressly reserved by AppNotch.
17.2. Trademarks: APPNOTCH and the related logos are trademarks of AppNotch, and may not be copied, imitated or used, in whole or in part, without AppNotch’s prior written permission. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks and/or trade dress of AppNotch or its licensors and may not be copied, imitated, or used, in whole or in part, without AppNotch’s prior written permission.
18. Policy, Notices and Procedures Regarding Claims of Copyright Infringement:
AppNotch respects the intellectual property rights of others. If you believe that your work has been copied and is accessible on the Service in a way that constitutes copyright infringement, you may notify our agent as provided in this section. Pursuant to Title 17, United States Code, Section 512(c)(2), AppNotch designates Copyright Agent as its agent designated to receive notification of claimed copyright infringement (“Designated Agent”). The address of the Designated Agent is 111 Westport Plaza, Suite 600, Saint Louis, Missouri 63146. The telephone number of the Designated Agent is (314) 433-3222. The email address of the Designated Agent is email@example.com. We may terminate your use and access to the Service (including your User Account) if we believe that you are infringing the intellectual property rights of others or are aiding or threatening such infringement.
19. Governing Law and Jurisdiction:
These Terms of Service, and all matters arising out of or relating to these Terms of Service, shall be governed by the federal laws of the United States and the laws of the State of Missouri, without giving effect to the conflict of law provisions thereof and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. You consent to exclusive jurisdiction and venue in the federal courts sitting in St. Louis, Missouri, unless no federal subject matter jurisdiction exists, in which case you consent to exclusive jurisdiction and venue in the state courts sitting in St. Louis County, Missouri. You hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which you may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. You agree that any cause of action that you may desire to bring arising out of or related to these Terms of Service must commence within one (1) year after the cause of action arises; otherwise, such cause of action shall be permanently barred.
20. General Provisions:
The Terms of Service constitute the entire agreement between the parties with respect to the use of the Site and Service and supersede all prior and contemporaneous agreements and understandings regarding such subject matter. The Terms of Service may not be supplemented, modified, amended, released, discharged or waived, in whole or in part, by you, except by an instrument in writing signed by each Party’s duly authorized representative. Without limiting the generality of the foregoing, nothing contained in any purchase order or similar document issued by you will in any way modify or add any additional terms or conditions to the Terms of Service. If any provision of these Terms of Service is declared or found to be illegal, unenforceable or void, then the invalid or unenforceable portion shall be modified in accordance with the applicable law as nearly as possible to reflect the original intention of the applicable provision, and the remaining sections of these Terms of Service shall remain in full force and effect. No right or remedy conferred by these Terms of Service is exclusive of any other right or remedy conferred herein or by law or in equity; rather, all of such rights and remedies are cumulative of every other such right or remedy and may be exercised concurrently or separately from time-to-time. AppNotch may provide notice to you relating to these Terms of Service by sending an e-mail to your last known e-mail address, if any, your last known postal address, if any, or posting a notice on the Site or Service, and any such notice shall be deemed given and received on the earlier of the day it is sent to you or the day it is posted on the Site or Service. A printed version of these Terms of Service and of any notices given to you in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The failure of AppNotch to insist upon or enforce strict performance by you of any provision of these Terms of Service shall not be construed as a waiver of any provision or right. If AppNotch brings any suit against you to enforce these Terms of Service or otherwise in connection with your use of the Site and/or Service, you agree that if AppNotch prevails in such suit AppNotch shall be entitled to recover all costs and expenses incurred in such suit including reasonable attorneys’ fees. Use of the Site and Service is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms of Service. Your use of the Service is at your sole risk. The service is provided on an “as is” and “as available” basis. Technical support is only available via email. The technical support email address is firstname.lastname@example.org. You authorize the Company to use, reuse, and to grant others the right to use and reuse, your Content, and any reproduction or simulation thereof, in any form of media or technology now known or hereafter developed, both during and after your use of the Services, for any purposes related to the Service. You understand that AppNotch uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service. You must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, or any other AppNotch service. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by AppNotch We may, but have no obligation to, remove Content and Accounts containing Content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service. Verbal, physical, written or other abuse (including threats of abuse or retribution) of any AppNotch customer, employee, member, or officer will result in immediate account termination. You understand that the technical processing and transmission of the Service, including your Content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. You must not upload, post, host, or transmit unsolicited email, SMSs, or “spam” messages. You must not transmit any worms or viruses or any code of a destructive nature. AppNotch does not warrant that (i) the service will meet your specific requirements, (ii) the service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations, and (v) any errors in the Service will be corrected. You expressly understand and agree that AppNotch shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if AppNotch has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the service; (v) or any other matter relating to the service. The failure of AppNotch to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service constitutes the entire agreement between you and AppNotch and governs your use of the Service, superseding any prior agreements between you and AppNotch (including, but not limited to, any prior versions of the Terms of Service).