JMango360 Terms & Conditions

Transcription

1 JMango360 Terms & Conditions 1. Definitions 1.1. The following terms, used in the single or plural form, will have the following meaning: Account The Account is the User s access to the Service provided by JMango360, upon the User s registration for the Service. The Account provides access to at least: (i) User settings for the service, including Personal Data, (ii) the Platform, (iii) the Service, (iv) Apps developed, published and maintained by User Agreement The agreement between JMango360 and the User for access to and use of the Service. The Agreement is entered by creating an account for the Service, by means of User s explicit agreement to this terms, during the registration process. App A mobile application, developed and maintained by the User using the Service, as further described on the Website and/or in the Service. App Store The online stores for downloading and purchasing Apps, as provided by the respective Mobile OSs App Store Account The account providing access to App Store(s), used for (but not limited to) publishing, testing, maintaining (including removal) and updating Apps on Mobile OSs JMango360 The trade name of JMango Operations B.V., a company with limited liability, incorporated under the laws of The Netherlands, having its principle place of business at Barbara Strozzilaan 201, 1083 HN Amsterdam, The Netherlands, Dutch Chamber of Commerce registration no Content Any content provided by the User, by uploading and/or entering into the User s section of the Platform, for use in the App(s) User is going to develop using JMango360 s Service Credentials The User s username and password, required to access a registered Account, in order to use JMango360 s Service. Free Service The parts of the Service available for User, for which no payment obligation exists. Intellectual Property Rights All intellectual property rights, licenses and associated rights, relating to JMango360 s Service and Platform Mobile OS A Mobile OS is an operating system for mobile devices, provided by (but not limited to) Apple Computer, Inc. ( Apple ios), Google Inc. ( Google Android), Microsoft (Windows Phone) and Blackberry (Blackberry OS). Paid Service The parts of the Service for which a paid Subscription is required. Parties User and JMango360 Personal Data Any data directly or indirectly relating to a natural person and data relating to User s business. Platform JMango360 s online system providing the necessary tools to build and maintain an App, including but not limited to) plugins and additions enabling the use of third-party solutions accessible through the Service, Platform and/or App. Privacy Statement JMango360 s privacy statement, available at Reseller The event that the User makes use of the Service for its own customers Service The services provided by JMango360 to User, for the purpose of developing, testing, publishing, analyzing and/or updating the App, further described on the Website and/or in the Service. V Page 1

2 Subscription The Paid Service enabling User to publish his App in one of the supported App Stores. Available Subscription periods and terms are listed on JMango360 s website. Terms & Conditions These terms & conditions, which form an integral part of the Agreement, as available for download and print at JMango360 s website. User A natural person or legal entity, concluding the Agreement with JMango360. Website JMango360 s websites, including all subpages, subdomains and related sites. 2. Scope 2.1. These Terms & Conditions apply to the Agreement, the use of and access to the Service by User, and all acts between Parties JMango360 may amend these Terms & Conditions at any time. The most recent version of the Terms & Conditions will be available for download and print at JMango360 s Website. Should User continue to use the Service after amendment and/or revision of the Terms & Conditions, User hereby irrevocably accepts the amended or revised Terms & Conditions. Should User not agree with the amendments and/or revisions, User s exclusive remedy is to no longer use the Service and to terminate its Account If any provision in these Terms & Conditions is to be held (partly) void or unenforceable, all other provisions of these Terms & Conditions will remain in full force and effect. In such a case, JMango360 will replace the void or unenforceable provisions. In such case, the purpose and meaning of the void or unenforceable provisions will be taken into account, as far as possible JMango360 explicitly rejects any purchase conditions used by User Amendments and revisions of the Agreement will be valid as soon as these are expressly confirmed by JMango360 in writing If any provision of the Terms & Conditions contradicts one or more provisions of the Agreement, the provisions of these Terms & Conditions will prevail, unless explicitly agreed upon otherwise In the event that User acts as a Reseller of the Service, the User warrants that its customers are bound to these Terms & Conditions. A Reseller will be fully liable for the use of the Service by its own customers The Agreement will be concluded at the moment the User completes its registration for an Account for JMango360 s service. Part of concluding the Agreement is User s explicit acceptance of the Terms & Conditions 3. Account 3.1. To have access to and make use of to the Service, the User needs to create an Account through JMango360 s website. The User has to provide its own Credentials and Personal Data during this process, as presented during the process of creating an Account. The User is responsible for keeping its Credentials confidential. The User is responsible and liable for all use made of and access to the Service by means of its Account. As soon as the User knows (or has reason to assume) that its Account and/or Credentials has/have come into the hands of unauthorized party/parties, User must inform JMango360 immediately and has the obligation to take immediate effective measures himself, such as changing the password to its Account In case User is a natural person, User must be at least sixteen (16) years old at the time of creating an Account, in order to make use of the Service. If the User is not sixteen (16) years old, User requires its parent s or guardian s permission to create an Account. By accepting these Terms & Conditions, the User warrants that User is at least sixteen (16) years old or has the permission from its parent or guardian to create an Account and to make use of the Service In case User is a legal entity, the person creating an account on behalf of User warrants that this person is legally authorized to represent that legal entity JMango360 accepts no liability for any damages resulting from unauthorized access to or use of the Service by the User or third parties, notwithstanding Clause 10. V Page 2

3 4. Service 4.1. JMango360 hereby grants the User a non-exclusive, non-transferable, limited right to access and use the Service, under the conditions of these Terms & Conditions and for the duration of the Agreement User may not publish the App and/or Web App by other means than through the use of the Service The use of the Service is at the User s own expense and risk. User is responsible for meeting technical and functional requirements to be able to access and use the Service. The risk of loss, theft or damage to any of its data will at all times be borne by the User Use of the App, including transmission, distribution and making the App available and any other acts relating to the App, by or on behalf of the User, Mobile OSs and/or end-users is for the User's own risk and responsibility. JMango360 is not liable and/or responsible for the Content, the App, and/or any use made of the Service by Users, notwithstanding Clause Notwithstanding any other provisions of these Terms & Conditions, and any of the User s obligations, the use of the Service, the App and the Content may not, at JMango360's sole discretion: a) include software such as viruses or Trojans that can damage or erase, make unavailable or make inaccessible any computers or data of JMango360, (other) Users or third parties; b) bypass technical security measures of the systems of JMango360, (other) Users or third parties; c) involve unreasonable or disproportionate use of the infrastructure of JMango360 s or third parties infrastructure; d) impede the functionality or functionalities of the Service; e) involve manual or automated software, devices, or other processes to crawl, f) spider or scrape any content of the Service; g) constitute unauthorized or unsolicited advertising, junk, spam, bulk , scam and/or phishing; h) infringe JMango360 s or third party s Intellectual Property Rights, privacy rights or any other rights; i) involve pornography in any kind, bestiality or other unlawful erotic content or acts relating thereto; j) promote or provide instructions to, or information about how to engage in illegal conduct, commit illegal activities or promote physical harm or injury; k) involve any illegal activities or activities that are contrary to morality or public order; l) involve false or misleading information; m) involve otherwise inappropriate use; n) breach these Terms & Conditions or the Agreement; and/or be unlawful in any way whatsoever User warrants to refrain from said acts per Article The Service may contain information that is derived from and/or may refer to third parties websites, products or services. JMango360 is not responsible, nor liable for the content of such information User acknowledges and agrees that JMango360 does not pre-screen nor has influence over the Content, the App, or User s use of the Service, unless explicitly agreed to User understands that JMango360 uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service JMango360 has the right, without any obligation, at its sole discretion, to review, edit, limit, refuse or remove Content and/or Apps and/or to limit and/or refuse a User the use of the Service, in the event the Content, the (content of the) App and/or or use of the Service, according to JMango360, violates these Terms & Conditions, and/or that JMango360 deems to be otherwise objectionable, and/or in the event JMango360 deems the technical functionality of the App malfunctioning JMango360 may disclose User s Personal Data and/or Content or data relating to the use of the Service to third parties, in case of an urgent reason, to comply with a court order, ongoing judicial proceeding, criminal or civil subpoena or other legal process or request by law enforcement authorities in the Netherlands, or to exercise JMango360 s legal rights of defense against claims. 5. Prices and payment 5.1. User may make use of the Free Service for free User will enter into the Paid Service as soon as User files a publish request for (one of) it s Apps in at least one of the supported App Stores. For each published App User will enter into a separate Subscription Prices and payment details, including subscription terms and payment terms, are specified on the Website and/or in the Service. Prices are shown in the currencies mentioned on the Website, and are always shown exclusive of VAT, import duties and other government imposed taxes, duties and levies (where applicable) Payment is arranged through one of the Payment Services as provided on JMango s website and/or in the Service. V Page 3

4 5.5. User guarantees that any information submitted using the Service, including (without limitation) its payment details, shall be complete, correct, truthful and up to date JMango360 may provide User offers for discounts or other special price arrangements User has the obligation to inform JMango360 immediately about any inaccuracies in the offer provided or the payment details described, including the price. The User cannot hold JMango360 to any offer for the Service, if User could (or should) reasonably have known that the offer and/or the price is an obvious mistake or obvious error in writing During the indicated validity of the offer the prices of Service and/or applicable discounts will not be changed, except for changes in tax rates and/or duties, where applicable All payments for fees relating to the Service, made to JMango360, are non-refundable in case the App is refused by one of the supported Mobile OS, or when the App has been revoked from one of the supported Mobile OSs Any subscriptions, services and/or fees provided or required by third parties, in any kind of form, required for proper functioning of the App, will fall outside the scope of the Agreement and will be charged to User separately by the concerning party or by JMango User will pay the amounts in accordance with the payment conditions stated by JMango If User fails to meet its payment obligations, User shall owe legal interest per Article 6:119a of the Dutch Civil Code, without any prior written demand or notice of default being necessary If User continues to fail its payment obligations, JMango360 is entitled to pass on the claim to a collection agency. In this case, User will be charged the relevant collection costs. User s (partial) payments. received after a collection agency has started collecting User s debts, will be considered payment towards collection costs first. This does not affect JMango360's right to claim any costs and (additional) damages actually incurred If User fails to meet its payment obligations or terminates its subscription to the Paid Service, JMango360 is (also) entitled to remove and/or suspend the App from the relevant Mobile OSs, without notice and without any liability to the User 6. Publishing using User s App Store Accounts 6.1. If User desires to publish his App(s) using his own App Store Accounts, JMango360 will not be regarded as the publisher of the App with any Mobile OS. User agrees to provide JMango360 full access to User s publishing account(s) for the relevant Mobile OS(s) by providing JMango360 all necessary credentials JMango360 will use all reasonable efforts to have the App approved by the relevant Mobile OS(s) JMango360 cannot guarantee nor is responsible for the approval of the App by the relevant Mobile OSs. Acceptance of Apps by the Mobile OSs is subject to their relevant rules, regulations and guidelines, which may vary between the respective Mobile OSs User shall be solely responsible for securing and paying for all relevant licenses from copyright owners, or their agents, required in connection to the content as used by User in or in connection with the App. 7. Publishing Apps using JMango s App Store Accounts 7.1. If user desires to publish his App(s) using JMango s App Store Accounts, User hereby irrevocably accepts that JMango360 will be regarded as the publisher of the App with any Mobile OS User hereby irrevocably accepts the Terms & Conditions of all App Stores in which the App is published by JMango360, per order and on behalf of User JMango360 will use all reasonable efforts to have the App approved by the relevant Mobile OSs JMango360 cannot guarantee nor is responsible for the approval of the App by the relevant Mobile OSs. Acceptance of Apps by the Mobile OSs is subject to their relevant rules, regulations and guidelines, which may vary between the respective Mobile OSs JMango360 is not liable nor responsible for removal of an App or Apps by any Mobile OS from it s App Store(s), for any kind of reason, when published using one of JMango360 s App Store Accounts. User s only remedy to solve such removal is to apply for his own accounts for the App Store(s) of relevant Mobile OSs and re-publish the App. In such case, JMango360 will use all reasonable efforts to have the App republished and approved by the relevant Mobile OS(s), using Users own App Store Account(s), in which case Clause 6 of these Terms will apply. V Page 4

5 8. Intellectual Property Rights 8.1. JMango360 and/or its licensors reserve all rights not expressly granted to the User. User acknowledges and agrees that except as specifically set forth in these Terms & Conditions JMango360 and its licensors retain all rights, title and interest, including the Intellectual Property Rights, in and to the Service and the Website as well as to any modifications, adaptations or translations thereof. User acknowledges and agrees that it does not acquire any rights therein, express or implied, except for the rights expressly granted under these Terms & Conditions. The Service is licensed, not sold The User is not permitted to sell, rent out, transfer or grant restrictive rights to the Service, or make it available to third parties in any way or for any purpose not explicitly mentioned in these Terms & Conditions. User will also refrain from granting third parties access remotely or otherwise to the Service or to provide the Service to a third party, without JMango360 s prior written consent The User is explicitly not allowed to download, copy, amend, make available, or otherwise provide (parts of) JMango360 s Service, App, Platform, Website or other materials made available to the User by means of the Service, for direct or indirect purposes in any kind, other than the purposes mentioned in these Terms & Conditions, without JMango360 s prior written consent or if a mandatory or peremptory rule of law states otherwise The User is prohibited to reverse engineer (parts of) the Service, Platform, App, Website or other materials made available to the User, to the extent legally permissible. In the event of reverse engineering permitted by a mandatory or peremptory rule of law, the User is only allowed to execute this legal right upon requesting JMango360 to provide the necessary information and not before JMango360 fails to provide such information within reasonable time JMango360 will be permitted to install technical provisions for the purpose of protecting the Service and Website in relation to an agreed restriction on the content or the term of the right to use thereof. User is not allowed to remove or circumvent such technical provisions JMango360's obligation to provide the Service, if any, and the User's right of use thereof will only extend to the object code of the Service. Under no circumstance will User obtain any right, and under no circumstance will JMango360 be obliged to provide the source code or any preliminary materials of the provided Service In the event JMango360 provides third party software or services, the terms and conditions of that third party may be applicable to the use of such software or services. User guarantees to accept and comply with these third party's terms and conditions. JMango360 is no party to such an agreement The User will retain all the rights, title and interest, if any, including the Intellectual Property Rights, to the Content and the App and/or Web App when finished and/or published. However, all the rights to the programming code, content management system and Service will remain to JMango The User agrees and acknowledges that by providing any Content using the Service, User automatically grants JMango360 a royalty-free, unencumbered, world-wide, non-exclusive right to use, reproduce, circulate and make public the Content, for JMango360's own marketing and/or promotional purposes in connection with the Service. JMango360 will not invoke the right without User s prior written consent Unless parties have agreed upon a no-branding service, User is not allowed to remove, make illegible, hide or change any notification with regard to JMango360 s Intellectual Property Rights. 9. Privacy 9.1. During the use of the Service, the User provides Personal Data to JMango360. Personal Data will be saved and processed in accordance with the Privacy Statement and the Dutch Personal Data Protection Act, in accordance with JMango360 s privacy policy as found on JMango360 s Website In the event JMango360 deems necessary for the execution of the Agreement, User will inform JMango360, on its first request and in writing, of the manner in which the User fulfils its obligations under the Personal Data Protection Act, and/or other applicable legislation on the protection of personal data 9.3. JMango360 will not process Personal Data, other than for the provision of the Service JMango360 will not share personal information from User with third parties unless JMango360 has obtained permission thereto or is required to do so by law The responsibility for storing Personal Data at JMango360 by using the Service lies solely with User. User warrants that the content, use and/or processing of the Personal Data is not unlawful and that it does not infringe any rights of third parties. V Page 5

6 10. Warranties JMango360 warrants that the Service fulfils the Agreement, the specifications stated in the offer, the reasonable requirements of reliability and/or serviceability and the statutory stipulations and/or governmental regulations that existed on the date that the Agreement was concluded. However, JMango360 does not warrant that the Service is suited for other than normal designation, as described in these Terms & Conditions. Moreover, JMango360 does not warrant that the Service will be error free, complete or up-to-date at all times JMango360 does not guarantee that the Service or any part thereof will be accessible at all times and without any interruptions or failures. Failures in the Service can occur as a result of failures outside JMango360 s scope. JMango360 is not liable towards the User for any damage, loss or costs resulting or arising from the Service being (temporarily) unavailable, including but not limited to the loss of data or inability to access or use the Service, notwithstanding Clause JMango360 is entitled to change and/or update the Service and replace the design and layout of any of the functionalities of the Service without any prior notification and without being obliged to pay any compensation whatsoever to the Users JMango360 is entitled to put the Service (temporarily) out of service and/or to reduce the use of it with or without prior notification and without being obliged to pay any compensation whatsoever to the User, when JMango360 deems necessary, for reasonably required updates and maintenance of the Service or due to force majeure. Force majeure includes but is not limited to site or building blockades, strikes, riots, civil disruption, war, terrorist acts, inclement weather, epidemic, specific work interruptions, delay in transportation, earthquake, fire, storm, flood, or water damage, delay in or cancellation of the delivery to JMango360 of parts, goods or services ordered from third parties, or governmental, legal or regulatory restrictions JMango360 does not warrant in any way whatsoever that any terms and conditions applicable to third party software or services including but not limited to the terms and conditions Mobile OSs, or payment providers allow the use of and/or interaction with the Service The User is responsible and liable for all use it makes of the Service, including but not limited to its use of its Account and the results of the Service, notwithstanding Clause 10. The User indemnifies and holds JMango360 harmless against any and all claims by third parties in connection with or resulting from the use that the User makes of the Service, a violation by the User of these Terms & Conditions, and/or any unlawful activities. This includes, without limitation, any activities that constitute an infringement of Intellectual Property Rights or (other) rights of third parties. 11. Limitation of liability JMango360 s liability for damages resulting from or relating to attributably failing to perform the Agreement, including these Terms & Conditions, for unlawful act or otherwise will be excluded in the event The User qualifies as a professional party and to the extent allowed by a mandatory or peremptory rule of law The User s only remedy in the event of an attributable failure, unlawful acts of JMango360, or other cause of damages, is to discontinue the use of the Service and/or to delete its Account In the event that JMango360 is liable for damages under a mandatory or peremptory rule of law, the damage will be limited to compensating for direct damages for a maximum amount per event not exceeding the amounts paid by User during the month prior to the event causing the damages per event (a series of connected events being considered as one event). In no event JMango360 s total aggregate liability will exceed an amount of EUR 1, JMango360 s liability for consequential damages arising out of, or in connection with the Agreement or these Terms & Conditions, such as (but not limited to) loss of profit, loss of business, loss of anticipated savings, or any other similar financial loss or loss of goodwill or reputation, or other incidental, indirect, punitive or exemplary damages of any kind, such as loss of data or errors in the App and/or Web App, independent of whether the User provides notice to JMango360 of such potential injury, damages or loss, is excluded. Moreover, JMango360 s liability is excluded for any payments made or other costs or damages relating to or caused by a Mobile OS rejecting the App, for whatever reason, for publication through such a Mobile OS In any event, the User s right to claim under the Agreement, these Terms & Conditions, unlawful act or otherwise shall lapse one (1) year after the occurrence giving rise to the claim or action The limitations mentioned in the preceding paragraphs of this article shall not apply if and insofar as the damage or injury is the result of intentional acts or omissions or gross negligence by JMango360. V Page 6

7 12. Term and termination User is entitled to terminate the Agreement for the Free Service at any time by discontinuing the use of the Free Service and/or by terminating the Account. The Agreement for the Paid Service can be terminated by the User at the end of the subscription period, at any time In addition to the other remedies available to JMango360, JMango360 is at all times, at its sole discretion, without prior written notice and without becoming liable to User, entitled to: a) (temporarily) terminate User s Account and its use of the Service in the event that JMango360, at its sole discretion, deems necessary; b) (temporarily) restrict or suspend User s activities in connection with the Service or to ban a User from the Service or to restrict or suspend the availability of the App c) ban a User from using the Service and prevent banned Users from creating a new Account and/or delete Accounts created by banned Users; and/or d) (partly) edit, delete or refuse any content or services within the Service All provisions which are meant to survive the termination of the Agreement, including the prohibition to publish the App through other means than the Service, shall survive such termination After termination, the User s right to access and use the Service, shall cease to exist immediately, without any right to compensation whatsoever. In the event of termination, JMango360 is allowed to delete the User s Account and to remove and/or suspend its App from the relevant Mobile OSs, without prior notice and without any liability to the User While JMango360 has no obligation to assist the User in migrating its data, including its App, off of the Service, JMango360 will use reasonable efforts to assist User in migrating his data in such case. JMango360 does not keep a back-up of the Account and/or App In case User is a natural person, User has the right to revoke the Agreement, without giving any reason thereto, before the App has been submitted for publication through a Mobile OS for a 30-day period. In any event, the right to revoke the Agreement will not apply from the moment that the trial period is over or from the moment the App has been submitted for publication through a Mobile OS regardless of whether the Mobile OS accepts or rejects the App for publication since JMango360 cannot recall the Service provided. 13. Applicable law and competent court These Terms & Conditions, the Agreement and the use of and access to the Service shall be exclusively governed by and construed in accordance with the laws of the Netherlands. The applicability of the Vienna Convention on the Sale of Goods is expressly excluded Any dispute arising out of or in connection with these Terms & Conditions, the Agreement and the use of and access to the Service shall be exclusively settled by the competent court in Amsterdam, The Netherlands. V Page 7