Terms of Service Agreement

Aternity, Inc. Mobile App. Developer

Terms of Service

BY CLICKING THE “I AGREE” BUTTON OR DOWNLOADING, INSTALLING OR USING THE ATERNITY SDK AND ACCESSING THE ATERNITY PLATFORM, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT (“TERMS AND CONDITIONS” or “AGREEMENT”).  IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS, YOU MAY NOT INSTALL OR USE THE ATERNITY SDK OR ACCESS THE ATERNITY PLATFORM.

1. Definitions

1.1 “App Users” means the users of the Customer App(s).

1.2 “Aternity SDK” means a small software module that you deploy inside Customer App(s) to enable data to be transmitted from the Customer App(s) to the Aternity Platform.

1.3 “Aternity Platform” means the hosted service made available through the Site that allows for performance monitoring, reporting and management to be performed for the Customer App(s) and the documentation therefor.

1.4 “Customer App(s)” means your mobile application(s) that will have an Aternity SDK deployed within it.

1.5 “Documentation” means all technical materials or information related to the Aternity SDK and the Aternity Platform.

1.6 “Service” means the Aternity Platform and the Aternity SDK.

1.7 “Site” means the Aternity website located at http://www.aternity.com, including without limitation all sub-domains thereof.

2. Aternity Platform and Aternity SDK

2.1 Aternity Platform. Aternity hereby grants you a non-transferable, non-exclusive right and license during the Term (defined in Section 6.1) to access and use the Aternity Platform internally for the sole purpose of viewing and reporting upon performance data of your Customer App(s).  You are responsible for deploying the Aternity SDK, obtaining and configuring all required computer hardware, software and telecommunications services to access the Aternity Platform.

2.2 Aternity SDK License.  Aternity hereby grants you during the Term the non-transferable, non-exclusive right and license:

(a)  to install and use the Aternity SDK internally for the sole purpose of using the Aternity SDK to provide performance data from the Customer App(s) to the Aternity Platform; and

(b)  to use, reproduce and distribute the Aternity SDK solely as embedded within your Customer App(s) for the purpose of providing data from the Customer App(s) to the Aternity Platform.

2.3 License Restrictions.  You shall have no rights or licenses with respect to the Service or the Documentation except as expressly provided in the Agreement.  Without limiting the generality of the foregoing, except as expressly provided in the Agreement, you may not (a) duplicate, copy, distribute, rent, sell, lease, lend, sublicense, reuse any portion of, or transfer the Service and Documentation (or any portion thereof); (b) make the Service or Documentation (or portions thereof) available to any third party other than as contemplated in Section 2.1 and 2.2; (c) provide the Service on a service bureau or hosted basis; (d) decompile, reverse engineer, or disassemble the Service (or portion thereof) unless as otherwise specifically permitted under applicable law; (e) alter or modify the Service (or portion thereof); (f) create derivative works of, or based on, the Service (or portion thereof); or (g) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on or in the Service or during the use and operation of the Service.  Aternity reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice.

3. Data

3.1 Data Rights.  In connection with the operation of the Service, Aternity collects data regarding your use of the Service (such data, “Customer Data”) and App Users’ use of the Customer App(s) (such data, “App User Data”).  You grant Aternity (and its third party vendor’s subject to confidentiality obligations) the right to use, reproduce and distribute the Customer Data and App User Data in connection with our presentation of such Customer Data and App User Data to you through the Platform or otherwise.  You further grant Aternity the right to use, reproduce and distribute Customer Data and App User Data when it is aggregated with other information and not specifically identifiable to you or any app user for the purpose of improving the Service, providing future functionality or services, publishing industry reports or marketing materials.

3.2 Data Limitations.  You must not transfer to Aternity, and must not modify, configure or use the Aternity SDK or any other aspect of the Service to track, collect, or to cause to be collected by or transferred to Aternity, any App User Data that is personally identifiable information, financial information, health information, medical information, pharmaceutical information, information regarding children under 13 years of age, or other sensitive information (for example, Social Security Numbers), or that is used to target advertising to individual devices or App Users.  You shall be solely responsible for ensuring that the Customer App(s) and your use of the Service, including without limitation your provision of App User Data to Aternity through the Aternity SDK and any other provision of App User Data to Aternity by you or on your behalf, comply with all applicable laws, rules, and regulations.  You shall obtain and maintain all rights required to permit the transfer of App User Data to Aternity as contemplated by the Agreement, and to allow Aternity to use the App User Data pursuant to the Agreement.  You are solely responsible for the Customer App(s), including without limitation all features, data, content and other materials included in, made available in or transmitted from the Customer App(s).

3.3 International Use.  The Aternity Service is controlled and offered by Aternity from its facilities in the United States, and the Aternity servers and data centers are located in the United States.  If you choose to access and use the Service from outside the U.S., then you acknowledge that you are transferring Customer Data and App User Data into the U.S. for storage and processing and that you are responsible for compliance with all local laws applicable to such transfer, storage and processing.

4. Accounts

4.1 Account Registration.  In order to use the Service, you will have to register for an Aternity account on the Site.   You agree that the information you provide to Aternity upon registration and, at all other times, will be true, accurate, current, and complete.  You also agree that you will ensure that this information is kept accurate and up-to-date at all times.  Aternity agrees that it will treat such registration information consistent with its privacy policy located at /privacy-policy/.

4.2 Authorized Accounts.  You may create Aternity accounts with unique log-in credentials for designated users to access and use the Service on your behalf.  You are solely responsible at all times for (a) ensuring that all of your accounts are used solely in accordance with the Agreement, (b) maintaining the confidentiality of all log-in credentials for your accounts, and (c) for the activities of any person accessing the Aternity Platform using any of your accounts.

5. Term; Termination

5.1 Term.  The “Term” of the Agreement shall be one (1) year from the date of your agreement to these Terms and Conditions and shall continue for additional one (1) year terms unless otherwise terminated as set forth below.

5.2 Termination for Cause.  Either party may terminate the Agreement effective on written notice if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within 30 days after receiving written notice of the breach from the non-breaching party.

5.3 Termination for Convenience.  Aternity, 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, for any reason at any time. Such termination of the Service will result in the suspension or deletion of your Account or your access to your Account. Aternity reserves the right to refuse service to anyone for any reason at any time.

5.4 Effect of Termination.  Sections 1, 3, 5.4, and 6 through 11 of the Agreement shall survive expiration or termination of the Agreement.  Upon termination or expiration of the Agreement for any reason, all licenses and rights granted herein to you shall terminate and you shall immediately discontinue all use of the Service, and at Aternity’s request, return or destroy the Aternity SDK, all Documentation, and certify such return or destruction in writing.

6. Warranty & Disclaimer

THE SERVICE AND DOCUMENTATION ARE PROVIDED “AS IS” WITH NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, ACCURACY OR THAT THE SERVICE WILL MEET YOUR NEEDS, OPERATE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE OR THAT THE SERVICE WILL ACCURATELY DIAGNOSE OR CORRECT EVERY PERFORMANCE PROBLEMS IN THE CUSTOMER APPS(S).  YOU AGREE THAT YOUR USE OF THE SERVICE AND DOCUMENTATION (INCLUDING WITHOUT LIMITATION ANY RESULTS) IS AT YOUR SOLE RISK.

7. Limitation of Liability

7.1 LIMITATION OF DAMAGES.  EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF BREACH OF SECTIONS 2 (ATERNITY PLATFORM AND ATERNITY SDK), 3 (DATA) OR 9 (CONFIDENTIALITY), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

7.2 LIMITATION OF LIABILITY.  EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF SECTIONS 2 (ATERNITY PLATFORM AND ATERNITY SDK), 3 (DATA) OR 9 (CONFIDENTIALITY), IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY AND DAMAGES UNDER THE AGREEMENT EXCEED THE GREATER OF $50 OR THE SUM OF THE TOTAL FEES PAID AND PAYABLE TO ATERNITY UNDER THE AGREEMENT DURING THE THEN CURRENT-TERM REGARDLESS OF WHETHER ANY REMEDY SPECIFIED IN THE AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

8. Confidentiality

8.1 Confidential Information.  “Confidential Information” means any and all information that is disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as “Confidential,” or with some similar designation, or if disclosed orally or by inspection or observation, is identified as being proprietary and/or confidential at the time of disclosure and is confirmed as such in writing within 15 days of the disclosure; or should otherwise be recognized as confidential by a person acting reasonably.  In the case of Aternity, Confidential Information includes all technical information with respect to the Aternity SDK, Aternity Platform, and associated documentation related to each.  Confidential Information does not include information that:  (i) is or becomes generally known to the public through no fault of or breach of the Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure; or (v) information provided through the web chat service, because the web chat service provider does not guarantee that they can protect the confidentiality of such information due to the inherent risk of internet use.

8.2 Use and Disclosure Restrictions.  Each party shall not use the other party’s Confidential Information except as necessary to exercise its rights or perform its obligations under the Agreement.  Except as otherwise permitted expressly by the Agreement, each party shall not disclose the other party’s Confidential Information to any third party except to those of its employees, and contractors that need to know such Confidential Information for the purposes of the Agreement, provided that each such employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth herein.  Each party will use all reasonable efforts to maintain the confidentiality of all Confidential Information of the other party in its possession or control, but in no event less than the efforts that a party ordinarily uses with respect to its own proprietary information of similar nature and importance.  The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement or (ii) on an as-needed, confidential basis to its legal or financial advisors.  In addition, each party may disclose the provisions of the Agreement: (a) as required under applicable securities regulations and (b) on a confidential basis to current or prospective investors or acquirers of such party.

9. Miscellaneous

9.1 The Aternity SDK and Aternity Platform may contain or be provided with components subject to the terms and conditions of “open source” software licenses (“Open Source Software”).  Open Source Software may be identified in the online Documentation, or Aternity shall provide a list of the Open Source Software for a particular version of the Software to you upon your written request.  To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.

9.2 Export Laws.  You acknowledge and agree that U.S. and foreign laws and regulations may restrict the export and re-export of certain commodities and technical data.  You shall not export or re-export the Aternity SDK, Aternity Platform or Documentation in any form without first obtaining all appropriate U.S. and foreign government licenses and permissions.

9.3 Relationship of the Parties.  The parties are independent contractors with respect to each other.  The Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties, or an employee-employer relationship.  No party shall have any right to obligate or bind any other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.

9.4 Assignment.  Neither party may assign the Agreement without the other party’s prior written consent which shall not be unreasonably withheld, provided that either party may, upon written notice to the other party, assign the Agreement in connection with the sale of a majority of its business assets or stock. Subject to the foregoing, the Agreement will inure to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.

9.5 Force Majeure.  Neither party will be responsible for any failure or delay in its performance under the Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.

9.6 Waiver.  A waiver of any provision of the Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived.  The failure by either party to insist upon the strict performance of the Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.

9.7 Severability; Counterparts.  If any provision, or portion thereof, of the Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of the Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct.

9.8 Governing Law; Jurisdiction.  The Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without reference to conflicts of laws principles.  The parties agree that the federal and state courts in Middlesex County, Massachusetts will have exclusive jurisdiction and venue under the Agreement, and the parties hereby agree to submit to such jurisdiction exclusively.

9.9 Authorized Signatory.  You represent and warrant that you are an authorized representative of your organization and can commit such organization.

9.10 Miscellaneous.  Aternity shall have the right, at any time and without notice, to add to or modify the terms of this Agreement, simply by delivering such amended terms to you by email provided to Aternity by you.  Your access and/or use of the Aternity Service, after the date of such amended terms being delivered to you, shall be deemed to constitute acceptance of such amended terms.  The Agreement constitute the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersede any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof.

These Service Terms and Conditions were last updated on May 20, 2014. You can review the most current version of the Service Terms and Conditions at any time at: /terms-of-service-mobile-app-developers/.  Questions about the Agreement should be sent to legal@aternity.com.