FLURRY APPCLOUD TERMS OF SERVICE
Last Updated: March 28, 2013
The AppCloud Service is available only to individuals who are at least 18 years old and to companies that are appropriately licensed and otherwise legally permitted to conduct business. You represent and warrant that (a), if you are an individual, you are at least 18 years old, and (b) if you are a company, you are appropriately licensed and are legally permitted to conduct business.
Modification of Agreement
Flurry reserves the right to change or modify any of the terms and conditions contained in this Agreement at any time, in its sole discretion, by posting changes at http://www.flurry.com (or such other URL that Flurry may provide from time to time). Your continued use of any part of the AppCloud Service following the posting of such changes or modifications will constitute your acceptance of such changes or modifications.
Description and Use of the AppCloud Service
The "AppCloud Service" or "Service" means a collection of backend mobile application development service libraries and components, including those for user management, object storage and push notifications, which are subject to change from time to time. In order to use the AppCloud Service, you must integrate Flurry's software development kit into your mobile application, and any fixes, updates and upgrades (the "Software") provided to you, provided that you have an active Flurry AppCloud account.
RegistrationTo register for the Flurry AppCloud Service, you must complete the registration process at http://www.flurry.com (or such other URL that Flurry may provide from time to time) by providing Flurry with current, complete and accurate information. Upon registration for the AppCloud Services, you will be required to provide Flurry with your email password and user name. You understand that you are solely responsible for maintaining the confidentiality of your password and that you shall be solely and fully responsible for all activities that occur under your username and password. Flurry shall not be responsible for any loss, claim or other liability that may arise from the unauthorized use of any password. You agree to immediately notify Flurry of any unauthorized use of your password or username or any other breach of security. If a password is lost or stolen, it is your responsibility to change the password, and immediately notify Flurry, so that your account remains both secure and functional.
Conditions of Use
No Illegal or Harmful Activities or Content: You are solely responsible for all material and content that you or end-users of your application ("End-Users") upload, publish or display, email or otherwise use in connection with the AppCloud Service, including without limitation any text, data, video, photographs, images, information, software, music, sound, or messages ("Your Content"). You may not use, or direct any person or entity to use, the AppCloud Service for any illegal, harmful, fraudulent, infringing or offensive use, or to transmit, store, display, distribute or otherwise make available content that is prohibited. Prohibited activities or content include:
- Any illegal activities, including without limitation, advertising, transmitting, disseminating, promoting, facilitating or otherwise making available instructional information regarding gambling sites or services, pornography or other illegal activities, or which otherwise violates any applicable law;
- Activities that may be harmful to others, Flurry's operations or reputation, including without limitation, offering or disseminating fraudulent goods, services, schemes, or promotions (e.g., ponzi and pyramid schemes, spam, phishing, or pharming), or engaging in other deceptive practices;
- Activities that solicit personal information from anyone under the age of 18;
- Content that infringes or misappropriates the intellectual property or proprietary rights of others, or violates a third party's right of privacy;
- Content that is defamatory, obscene, abusive, invasive of privacy, excessively violent, pornographic, libelous, hateful, or otherwise objectionable, including without limitation content that constitutes child pornography or depicts the assault of humans or animals; and
- Content or activity which, in the sole judgment of Flurry, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Flurry, its affiliates or its users to any harm or liability of any kind.
No Security or Network Abuse: You may not use, or direct any person or entity to use, the AppCloud Service to violate the security or integrity of any network, computer or communications system, software application, or network or computing device (each, a "System"), including without limitation, (i) accessing or using any System without permission, including attempting to probe, scan, or test the vulnerability of a System or to breach any security or authentication measures used by a System, (ii) monitoring of data or traffic on a System without permission, (iii) using manual or electronic means to avoid any use limitations placed on a System, such as access and storage restrictions; (iv) interfering with the proper functioning of any System, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques; (v) monitoring or crawling of a System that impairs or disrupts the System being monitored or crawled; or (vi) otherwise conducting any activity that may damage, interfere with, surreptitiously intercept, interrupt, expropriate or limit the functionality of any System, including without limitation viruses, Trojan horses, worms, or cancelbots.
No Email or Other Message Abuse: You agree not to (i) distribute, publish, send, or facilitate the sending of unsolicited mass e-mail or other messages, promotions, advertising, or solicitations (ie. "spam"), including commercial advertising and informational announcements; (ii) alter or obscure mail headers or assume a sender's identity without the sender's explicit permission; and (iii) collect replies to messages sent from another internet service provider if those messages violate this Agreement or the acceptable use policy of that internet service provider.
International Use; Export Controls: Software available in connection with the AppCloud Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of the export control laws of the United States. Downloading or using the Software is at your sole risk. You agree to comply with all applicable local law and rules regarding your use of the Service.
No Unauthorized Automated Programs: You shall not directly or indirectly, take or authorize or encourage a third party to take any fraudulent action or any other action that interferes with, disrupts or interacts in an unauthorized manner with the Service (or servers and networks which are connected to the Service), including but not limited to the use of robots, scrapers or other automated query tools and/or computer generated search requests.
Other Responsibilities: You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement or Your Content. You are responsible for End-User's use of Your Content and the Service. You will ensure that all End-Users comply with your obligations under this Agreement and that the terms of your agreement with your End-Users are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement by an End-User, you will immediately terminate such End User's access to Your Content and the Service. You are responsible for providing customer service (if any) to End-Users. Flurry does not provide any support or services to End-Users unless expressly agreed to in writing. You are responsible for properly configuring and using the Services and maintaining appropriate security, protection and backup of Your Content, which may include the use of encryption technology to protect Your Content from unauthorized access and routine archiving Your Content.
Flurry reserves the right (but shall have no obligation) to reject, approve, remove or require you to remove any of Your Content from the Service for any reason, in our sole discretion. You agree to remove immediately any of Your Content that violates this Agreement, including pursuant to a removal request from Flurry. These restrictions may not be comprehensive to meet the requirements of all applicable laws. You are responsible for ensuring that all Your Content meets the requirements of all applicable laws.
Flurry may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Flurry also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this Agreement. We may disclose Your Content to provide the Service to you or your End-Users or to comply with any request of a government or regulatory body (including subpoenas or court orders).
Reports and ResultsIf you use the AppCloud Service in conjunction with the Flurry Analytics Service, subject to the terms and conditions of this Agreement, you may remotely access, view and download the Reports, which will be stored at http://www.flurry.com (or such other URL that Flurry may provide from time to time). Flurry shall own and retains all right, title and interest in and to Reports and all other results, data and/or information provided to you through the Service (collectively, "Results"). You may use the Reports only in connection with your use of Flurry Analytics pursuant to this Agreement and not for any other purpose.
Incidental Costs Associated with Use of the AppCloud ServiceYou agree that you are solely liable for all costs, fees, and other expenses resulting from your use of the AppCloud Service. This specifically includes, but is not limited to, incidental costs incurred by you in connection with your use of the AppCloud Service, including, but not limited to, costs owed to your cell phone carrier, mobile provider, internet service provider, data plan costs, and any other additional fees incurred from your cell phone carrier, mobile provider or internet service provider.
Representations and WarrantiesYou represent and warrant to Flurry that: (i) you are the owner of each mobile application you designate in connection with the use of the Service or that you are legally authorized to act on behalf of the owner of such mobile application for the purposes of this Agreement; (ii) you have all necessary right, power and authority to enter into this Agreement, to grant the rights and perform the acts required of you hereunder and to permit Flurry to perform the Services contemplated under this Agreement; (iii) you or your licensors own all right, title and interest in and to Your Content; (iv) your use of the Service, the delivery and performance by you of the terms and conditions under this Agreement does not and will not conflict with or violate any agreement or other instrument with a third party applicable to you or otherwise infringe upon the rights of any third party; (v) you have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including, without limitation, any relevant data protection or privacy laws); (vi) you will comply with and have any and all consents, authorizations and clearances from End-Users to allow Flurry to collect, store, and use Your Content to provide the Service; (vii) none of Your Content nor your End-User's use of Your Content will violate this Agreement; and (viii) you will at all times comply with all applicable Flurry policies.
Proprietary Rights and Limited LicenseFlurry hereby grants to you a nonexclusive, limited, non-transferable, revocable and non-sublicensable license to install and use the Software solely as necessary to use the AppCloud Service pursuant to this Agreement for applications that you own and control. Your use of the Software and accompanying documentation ("Documentation") is subject to this Agreement and does not include: (a) any resale, lease, rental, assignment or other transfer of rights of the Software or Documentation; (b) the distribution, public performance or public display of the Software or Documentation; (c) modification, revision, creation of derivative works from or otherwise making any derivative uses of the Software or Documentation or any information or content therein; (d) decompilation, reverse engineering or otherwise attempting to derive the source code for the Software (except to the extent applicable laws specifically prohibit restriction of such activities); or (e) any use of the Software or Documentation other than for its intended purpose. Flurry hereby reserves all rights not expressly granted herein. Any use of the Software or Documentation other than as specifically authorized herein, without the prior written permission of Flurry, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark and other intellectual property laws.
As between Flurry and you, you or your licensors own all right, title and interest in and to Your Content. By submitting, posting or displaying Content on or through the Service or by creating an application through the use of the Service, you give Flurry a worldwide, royalty-free and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute Your Content and your application for the sole purpose of enabling Flurry to provide you with the Service. Except as provided herein, Flurry obtains no right under this Agreement from you or your licensors to Your Content, including any related intellectual property rights.
Open source software licenses for components of the Service released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede this Agreement, then open source licenses govern your agreement with Flurry for the use of the components of the Service released under an open source license.
Privacy and Information Collection
You agree that you will not use the AppCloud Service in connection with any application labeled or described as a "Kids" or "Children" application and will not use the AppCloud Service (i) in connection with any application or service directed towards children or (ii) to collect any personal information from children.
You agree to set up a process to respond to notices of alleged infringement that comply with the United States' Digital Millennium Copyright Act ("DMCA Notices"). It is Flurry's policy to respond to DMCA Notices or otherwise applicable copyright laws and to terminate the accounts of repeat infringers. Flurry reserves the right to remove or require you to remove any of Your Content, or if necessary, your application itself from the Service upon receipt of a valid DMCA Notice.
"Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within ten business days, indicated in writing as "confidential". Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes publicly known, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed or collected by the receiving party without the use of Confidential Information. Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such.
You agree to indemnify, defend and hold harmless Flurry, its employees, officers and directors, or users from and against any and all claims, liabilities, penalties, settlements, judgments, fees (including reasonable attorneys' fees) arising from (i) your or any End-Users' use of the Service (including any activities under your Flurry AppCloud account and use by your employees or agents); (ii) breach of the terms of this Agreement by you or any End-User; (iii) any violation or failure by you or your End-User to comply with all laws and regulations in connection with your use of the AppCloud Service, whether or not described herein; (iv) Your Content or the combination of Your Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Content or by the use, development, design, production, advertising or marketing of Your Content; or; (v) a dispute between you and any End-User.
Disclaimer of Warranties and Limitation of Liability
FLURRY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY REGARDING THE SERVICE TO THE FULL EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SERVICE IS PROVIDED "AS-IS" AND WITHOUT WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT YOUR CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, ANY WARRANTIES OF PERFORMANCE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FURTHER, FLURRY DOES NOT MAKE, AND HAS NOT MADE, ANY REPRESENTATION OR WARRANTY THAT THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR VIRUS-FREE OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
IN NO EVENT WILL FLURRY, ITS SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE "FLURRY PARTIES"), BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY UNDER ANY THEORY FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS, ARISING OUT OF THIS AGREEMENT OR THE SERVICE, INCLUDING WITHOUT LIMITATION YOUR INABILITY TO USE THE SERVICE, THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ANY INVESTMENTS, EXPENDITURES OR COMMITMENTS BY YOU IN CONNECTION WITH YOUR USE OF THE SERVICE, OR ANY UNAUTHORIZED ACCESS TO, LOSS, FAILURE TO STORE OR DESTRUCTION OF YOUR CONTENT OR OTHER DATA, EVEN IF FLURRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. THE FLURRY PARTIES' AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT OR THE SERVICE WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, THE FLURRY PARTIES' LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
Modifications to and Termination of the AppCloud Service
Flurry reserves the right to discontinue offering the AppCloud Service or to modify the AppCloud Service at any time in its sole discretion. If you are dissatisfied with any aspect of the AppCloud Service at any time, your sole and exclusive remedy is to cease using it. Notwithstanding anything contained in this Agreement to the contrary, Flurry may also, in its sole discretion, terminate or suspend your access to the AppCloud Service at any time. You understand that any termination of your access to the AppCloud Service may be without prior notice, and you agree that Flurry will not be liable to you or any third party for such termination. Upon any termination of this Agreement, Flurry will cease providing the AppCloud Service, and you will delete all copies of the Software from your applications and certify thereto in writing to Flurry within five (5) business days of such termination. You are solely responsible for exporting Your Content and applications from the AppCloud Service prior to termination of your account for any reason; provided, that if Flurry terminates your account, Flurry will provide you reasonably opportunity for you to retrieve Your Content and applications.
Waiver and Severability
If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. Flurry's acquiescence in the breach of a provision of this Agreement or failure to act upon such breach does not waive Flurry's right to act with respect to subsequent or similar breaches. Likewise, the delay or failure of Flurry to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
Choice of Law and Forum
This Agreement and the relationship between you and Flurry shall be interpreted in accordance with the laws of the State of California without regard to conflict of laws principles. Subject to the arbitration provisions below, you and Flurry hereby agree to submit exclusively, to the personal jurisdiction of the state courts with jurisdiction over San Francisco, California and/or the U.S. District Court for the Northern District of California.
Certain portions of this Section are deemed to be a "written agreement to arbitrate" pursuant to the Federal Arbitration Act. You and Flurry agree that we intend that this Section satisfies the "writing" requirement of the Federal Arbitration Act.
You or Flurry may elect to have any controversy, allegation or claim arising out of or relating to this Agreement or the AppCloud Service, including but not limited to claims for indemnification, contribution, or cross-claims in a pending action involving one or more third parties (collectively, a "Dispute") finally and exclusively resolved by binding arbitration before a sole arbitrator under the rules and regulations of the American Arbitration Association. If an in-person arbitration hearing is required, then it will be conducted in San Francisco, California; but if the applicable arbitration rules or laws require the arbitration to be conducted in the "metropolitan statistical area" (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration, Flurry shall have the right to elect to proceed to arbitration in such location. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. You and Flurry will pay the administrative and arbitrator's fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Flurry to pay a greater portion or all of such fees and costs in order for this Section to be enforceable, then Flurry will have the right to elect to pay the fees and costs and proceed to arbitration.
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT (I) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER; (II) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND (III) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS.
YOU AGREE TO WAIVE YOUR RIGHT TO A JURY TRIAL AND UNDERSTAND THAT, ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR FLURRY WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR FLURRY MUST COMMENCE IT WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES - OR IT WILL BE FOREVER BARRED.
In the event either you or Flurry elects arbitration, for any Dispute where the total amount of the award sought is less than $10,000 USD, the party requesting relief may further elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, and the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction.
This Agreement constitutes the entire agreement between you and Flurry and governs your use of the AppCloud Service, superseding any prior agreements between you and Flurry with respect to the AppCloud Service.
You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without Flurry's prior written consent. Any assignment or transfer in violation of this Agreement will be void.
No Third Party Beneficiaries
This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
The terms and conditions contained in this Agreement that by their sense and context are intended to survive the performance hereof by the Parties hereunder, including but not limited to the provisions relating to Indemnity, Disclaimer of Warranties and Limitation of Liability, shall so survive the completion of the performance, cancellation or termination of this Agreement.