M2APPINSIGHT TERMS OF SERVICE
The Services are 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
M2Catalyst 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://m2appinsight.com/m2appinsight-terms-history/ or such other URL that M2Catalyst may provide from time to time. Your continued use of any part of the Services following the posting of such changes or modifications will constitute your acceptance of such changes or modifications.
DESCRIPTION AND USE OF THE SERVICES
The “AppInsight Service” (“Service” or “the Services”) means, collectively, the “Software” and the “Business Intelligence Reports”, as defined below in this Agreement. M2Catalyst will provide you with online access to a variety of business intelligence reports (the “Business Intelligence Reports”) generated by M2Catalyst’s processing code and any fixes, updates, and upgrades. The Software Development Kit (”SDK”) and M2Catalyst’s processing code are defined collectively herein as “Software”. The processing code analyzes the application performance data collected by the SDK.
FEES AND PAYMENT
The Services are provided to you free of charge. M2Catalyst may change its fees and payment policies for the Services from time to time. These changes will be posted at http://www.M2Catalyst.com (or such other URL that M2Catalyst may provide from time to time).
INCIDENTAL COSTS ASSOCIATED WITH USE OF THE SERVICES
You agree that you are solely liable for all of your own costs, fees, and other expenses resulting from your use of the Services.
To register for the AppInsight Services, you must complete the registration process at http://www.M2Catalyst.com (or such other URL that M2Catalyst may provide from time to time) by providing M2Catalyst with current, complete and accurate information. Upon registration for the AppInsight Services, you will be required to provide M2Catalyst 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. M2Catalyst shall not be responsible for any loss, claim or other liability that may arise from the unauthorized use of any password. You agree to notify M2Catalyst immediately of any unauthorized use of your password or user name or any other breach of security. If a password is lost or stolen, it is the user’s responsibility to change the password, and immediately notify M2Catalyst, so that your account remains both secure and functional.
REPORTS AND RESULTS
Subject to the terms and conditions of this Agreement, you may remotely access, view and download the Business Intelligence Reports, which will be stored at http://www.M2Catalyst.com (or such other URL that M2Catalyst may provide from time to time). M2Catalyst shall own and retain all right, title and interest in and to the Reports and all other results, data and/or information provided to you through the service. You may use the Reports only in connection with your use of the Services pursuant to this Agreement and not for any other purpose.
REPRESENTATIONS AND WARRANTIES
You represent and warrant to M2Catalyst that: (i) you are the owner of each application you designate in connection with the use of the Services or that you are legally authorized to act on behalf of the owner of such application for the purposes of this Agreement; (ii) you have all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder and to permit M2Catalyst to provide the Services contemplated under this Agreement; (iii) your use of the Services and 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; (iv) 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); (v) you will comply with and have any and all consents, authorizations, and clearances from end users of your applications to allow M2Catalyst to collect, store, and use app performance data from your end users; and (vi) you will at all times comply with all applicable M2Catalyst policies.
You are hereby granted a nonexclusive, limited, non-transferable, revocable and non-sublicensable license to install, use, copy, and distribute the SDK solely as necessary to use the Services pursuant to this Agreement for applications that you own and control. Your use of the Services is subject to this Agreement and does not include the right to: (i) resell, lease, rent, assign or otherwise transfer any of the rights of and/or to the Services; (ii) distribute or display the Services publicly, except as expressly set forth above with respect to the SDK; (iii) modify, revise, create derivative works from or otherwise make any derivative uses of the Services or any information or content therein; (iv) decompile, reverse engineer or otherwise attempt to derive the source code for the Software (except to the extent applicable laws specifically prohibit restriction of such activities); or (v) use the Services other than for their intended purpose. M2Catalyst hereby reserves all rights not expressly granted herein. Any use of the Services other than as specifically authorized herein, without the prior written permission of M2Catalyst, 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.
You hereby grant to M2Catalyst the limited right to use your company name, trademarks, service marks and/or logos to identify you as a customer of M2Catalyst in its press releases, marketing publications, or websites.
PRIVACY AND INFORMATION COLLECTION
“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 M2Catalyst, its employees, officers and directors, advisers, and users from and against any and all claims, liabilities, penalties, settlements, judgments, fees (including reasonable attorneys’ fees) arising from (i) any information that you or anyone using your account may submit or access in the course of using the Services; (ii) your breach of any representation or warranty in, or violation of the terms of this Agreement or any agreement or other instrument with a third party applicable to you; (iii) any violation or failure by you in connection with your use of the Services, whether or not described herein; and (iv) any disputes between you and your customers, Ad Partners, advertisers, third-party ad networks, or publishers.
If you use the Services on behalf of any third party, you represent and warrant that you are authorized to act on behalf of, and bind to this Agreement, that third party. You shall ensure that each third party is bound by and abides by the terms of this Agreement. You agree to indemnify, hold harmless and defend M2Catalyst and its parents, subsidiaries, affiliates, officers, employees, and advisers at your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs, or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by M2Catalyst, arising out of or relating to (i) any representations and warranties made by you concerning any aspect of the Services; (ii) any claims made by or on behalf of any third party pertaining directly or indirectly to your use of the Services; (iii) violations of your obligations of privacy to any third party; and (iv) any claims with respect to acts or omissions of third parties in connection with the Services.
Those end users of your products and services on whose mobile device you install the SDK, are solely your customers and not customers of M2Catalyst. You are solely responsible for and M2Catalyst has no obligation to monitor or edit, any ads and related URLs, content and subject matter, editorial, text, graphic, audiovisual, and any other information you make available on your mobile application. You are solely responsible for all matters related to your Ad Partners, advertisers, third-party ad networks, publishers, and your customers, including without limitation, handling all support services, billing and payment, and any other transactions, inquiries and disputes of any type or nature.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
The information and services included in or available through the Services, including the Reports, may include inaccuracies or typographical errors. M2Catalyst may make improvements and/or changes in the Services at any time, with or without notice. You specifically agree that M2Catalyst shall not be responsible for unauthorized access to or alteration of the User Data or data from your applications.
M2CATALYST DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY REGARDING THE SERVICES TO THE FULL EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SERVICES ARE PROVIDED “AS-IS” AND WITHOUT WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF PERFORMANCE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FURTHER, M2CATALYST DOES NOT MAKE, AND HAS NOT MADE, ANY REPRESENTATION OR WARRANTY THAT THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR VIRUS-FREE OR THAT THE OPERATION OF THE SERVICES 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 M2CATALYST, ITS SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, ADVISERS, OR AGENTS (COLLECTIVELY, THE “M2CATALYST 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 SERVICES, EVEN IF M2CATALYST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. THE M2CATALYST PARTIES’ AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT OR THE SERVICES WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). 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 M2CATALYST PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
You shall not, directly or indirectly, take or authorize or encourage any third party to take any fraudulent action in the use of the Services, nor shall you engage in any activity that interferes with, disrupts or interacts in an unauthorized manner with the Services. M2Catalyst may terminate your account at any time for any reason, including without limitation, such fraudulent or unauthorized activity, in its sole discretion.
INTERNATIONAL USE; EXPORT CONTROLS
Software available in connection with the Services and the transmission of applicable data, if any, is subject to United States export control laws. No Software may be downloaded from the Services or otherwise exported or re-exported in violation of the export control laws of the United States.
MODIFICATIONS TO AND TERMINATION OF THE SERVICES
M2Catalyst reserves the right to discontinue offering the Services or to modify the Services at any time in its sole discretion. If you are dissatisfied with any aspect of the Services at any time, your sole and exclusive remedy is to cease using it. Notwithstanding anything contained in this Agreement to the contrary, M2Catalyst may also, in its sole discretion, terminate or suspend your access to the Services at any time. Upon any termination of this Agreement, M2Catalyst will cease providing the Business Intelligence Reports to you.
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 that the other provisions of this Agreement shall remain in full force and effect. M2Catalyst’s acquiescence in the breach of a provision of this Agreement or failure to act upon such breach does not waive M2Catalyst’s right to act with respect to subsequent or similar breaches. Likewise, the delay or failure of M2Catalyst 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 M2Catalyst 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 M2Catalyst hereby agree to submit exclusively, to the personal jurisdiction of the state courts with jurisdiction over Orange County, California and/or the U.S. District Court for the Southern Division of the Central 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 M2Catalyst agree that we both intend that this Section satisfies the “writing” requirement of the Federal Arbitration Act.
You and M2Catalyst agree that every effort will be made to resolve disputes internally. Any dispute arising under these Terms of Service that cannot be so resolved shall be resolved through a mediation – arbitration approach. You and M2Catalyst will have the right to be represented by an attorney or other advocate of their choosing, and agree to select a mutually agreeable, neutral third party to help mediate any dispute that arises under the terms of these Terms of Service. Costs and fees associated with the mediation shall be shared equally by the parties. If the mediation is unsuccessful, the parties agree that the dispute shall be decided by a single arbitrator by binding arbitration under the rules of the American Arbitration Association in Orange County, California. The decision of the arbitrator shall be final and binding on the parties and may be entered and enforced in any court of competent jurisdiction by either party. The prevailing party in the arbitration proceedings shall be awarded reasonable attorney fees, expert witness costs and expenses, and all other costs and expenses incurred directly or indirectly in connection with the proceedings, unless the arbitrator shall for good cause determine otherwise. However, if applicable arbitration rules or laws require M2Catalyst to pay a greater portion or all of such fees and costs in order for this Section to be enforceable, then M2Catalyst 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 M2CATALYST WANTS TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR M2CATALYST MUST COMMENCE IT WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE FOREVER BARRED.
This Agreement constitutes the entire agreement between you and M2Catalyst and governs your use of the Services, superseding any prior agreements between you and M2Catalyst with respect to the Services.
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.