Terms of Service

Effective January 12, 2011

1. Your Agreement with Appacitive

1.1

Your use of the Appacitive service is governed by this agreement (the “Terms”). “Appacitive” means Appacitive Software., located at A3, Hermes Vishal, Lane 7, Koregaon Park, Pune, Maharashtra 411014, India, and its subsidiaries or affiliates involved in providing the Appacitive Service. The “Appacitive Services” means the services Appacitive makes available through this website, including this website, the Appacitive cloud computing platform, the Appacitive API, the Appacitive Add-ons, and any other software or services offered by Appacitive in connection to any of those.
1.2In order to use the Appacitive Services, you must first agree to the Terms. You can agree to the Terms by actually using the Appacitive Services. You understand and agree that Appacitive will treat your use of the Appacitive Services as acceptance of the Terms from that point onwards.
1.3You may not use the Appacitive Services if you are a person barred from receiving the Appacitive Services under the laws of the United States or other countries, including the country in which you are resident or from which you use the Appacitive Services. You affirm that you are over the age of 13, as the Appacitive Services are not intended for children under 13.
1.4You agree your purchases of Appacitive Services are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Appacitive or any of its affiliates regarding future functionality or features.

2. Your Account and Use of the Appacitive Services

2.1

You must provide accurate and complete registration information any time you register to use the Appacitive Services. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify Appacitive immediately.

2.2

Your use of the Appacitive Services must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.

2.3

You agree not to (a) access (or attempt to access) the administrative interface of the Appacitive Services by any means other than through the interface that is provided by Appacitive in connection with the Appacitive Services, unless you have been specifically allowed to do so in a separate agreement with Appacitive, or (b) engage in any activity that interferes with or disrupts the Appacitive Services (or the servers and networks which are connected to the Service).

2.4

Your account has “hard” and “soft” usage limits, as detailed by your pricing plan. The Appacitive Services does not permit you to exceed the hard usage limits. Appacitive reserves the right to enforce soft usage limits in its sole discretion, which may result in Appacitive serving a “quota exceeded” page to you or users to whom you serve web pages via the Appacitive Services (“End Users”). Repeated exceeding of the hard or soft usage limits may lead to termination of your account.

2.5

You may use the Appacitive Services only to develop and run applications on the Appacitive infrastructure. You may not access the Appacitive Services for the purpose of bringing an intellectual property infringement claim against Appacitive or for the purpose of creating a product or service competitive with the Appacitive Services.

3. Service Policies and Privacy

3.1

You agree to comply with the Appacitive Acceptable Use Policy available at acceptable use policy (the “Acceptable Use Policy”) which is incorporated herein by this reference and which may be updated from time to time.

3.2

The Appacitive Services shall be subject to the privacy policy for the Appacitive Services available at privacy policy. You agree to the use of your data in accordance with Appacitive’s privacy policies.

3.3

You agree that you will protect the privacy and legal rights of the End Users of your application. You must provide legally adequate privacy notice and protection for End Users. If End Users provide you with user names, passwords, or other login information or personal information, you must make the users aware that the information will be available to your application and to Appacitive.

4. Fees for Use of the Appacitive Services

4.1

Subject to the Terms, the Appacitive Services is provided to you without charge up to certain limits. Usage over this limit requires your purchase of additional resources or services. The pricing for additional resources and services can be found at http://www.appacitive.com/pricing (or such URL as Appacitive may provide).

4.2

For all purchased resources and services, we will charge your credit card on a monthly basis or at the interval indicated in Appacitive fees and payment policies, if different. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. You are responsible for paying all taxes and government charges, and all reasonable expenses and attorneys fees Appacitive incurs collecting late amounts. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights). Charges are solely based on Appacitive’s measurements of your use of the Appacitive Services, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the discretion of Appacitive and only in the form of credit for the Appacitive Services. Nothing in these Terms obligates Appacitive to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that you provide to Appacitive may be shared by Appacitive with companies who work on Appacitive’s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Appacitive and servicing your account. Appacitive may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Appacitive shall not be liable for any use or disclosure of such information by such third parties. Appacitive reserves the right to discontinue the provision of the Appacitive Services to you for any late payments.

4.3

Appacitive may change its fees and payment policies for the Appacitive Services by notifying you at least fifteen (15) days before the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted on the website (or such other URL Appacitive may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason.

4.4

You may not develop multiple Applications to simulate or act as a single Application or otherwise access the Appacitive Services in a manner intended to avoid incurring fees.

4.5

Monthly Billing , Cancellation, and Refund Policies:
Services on the Appacitive platform are provided as a Software as a Service, which is invoiced in arrears. As it is only invoiced after the service has been provided, therefore all services rendered are non-refundable. Once a customer selects a subscription plan and provides billing information during or after the 90-day free trial, Appacitive will calculate a pro-rated amount with the first payment due on signing and thereafter on the 05th of the month. For example, if your 90-day free trial expires on the 20th of the month and you decided to sign up for a monthly subscription plan, Appacitive would bill you for 15 days of service the day you subscribed. Your billing cycle runs on the 05th of every month thereafter until cancelled. All subscriptions monthly, quarterly and yearly renew automatically on the 05th day of the expiration month until cancelled. Customers can cancel anytime by cancelling their subscription via their account or by emailing a notice to: support_at_appacitive.com.

5. Content on the Appacitive Services and Take Down Obligations

5.1

You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the Appacitive Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the “Content.” The term Content shall specifically exclude the web application that you create using the Appacitive Services and any source code written by you to be used with the Appacitive Services (collectively, “Applications”).

5.2

Appacitive reserves the right (but shall have no obligation) to remove any or all Content from the Appacitive Services. You agree to immediately take down any Content that violates the Acceptable Use Policy, including pursuant to a take down request from Appacitive. In the event that you elect not to comply with a request from Appacitive to take down certain Content, Appacitive reserves the right to directly take down such Content or to disable Applications.

5.3

In the event that you become aware of any violation of the Acceptable Use Policy by an End User of Applications, you shall immediately terminate such end user’s account on your Application. Appacitive reserves the right to disable Applications in response to a violation or suspected violation of the Acceptable Use Policy.

5.4

You agree that you are solely responsible for (and that Appacitive has no responsibility to you or to any third party for) the Application or any Content that you create, transmit or display while using the Appacitive Services and for the consequences of your actions (including any loss or damage which Appacitive may suffer) by doing so.

5.5

You agree that Appacitive has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Service. You further acknowledge that you are solely responsible for securing and backing up your Applications and any Content.

6. Proprietary Rights

6.1

You acknowledge and agree that Appacitive (or Appacitive’s licensors) own all legal right, title and interest in and to the Appacitive Services, including any intellectual property rights which subsist in the Appacitive Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).

6.2

Except as provided in Section 8, Appacitive acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or Applications that you create, submit, post, transmit or display on, or through, the Appacitive Services, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Appacitive, you agree that you are responsible for protecting and enforcing those rights and that Appacitive has no obligation to do so on your behalf.

7. License from Appacitive and Restrictions

7.1

Appacitive gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by Appacitive as part of the Appacitive Services as provided to you by Appacitive. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Appacitive Services as provided by Appacitive, in the manner permitted by the Terms.

7.2

You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Appacitive Services or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Appacitive, in writing (e.g., through an open source software license); or (b) attempt to disable or circumvent any security mechanisms used by the Appacitive Services or any applications running on the Appacitive Services.

7.3

Open source software licenses for components of the Appacitive Services released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with Appacitive for the use of the components of the Appacitive Services released under an open source license.

8. License from You

8.1

Appacitive claims no ownership or control over any Content or Application. You retain copyright and any other rights you already hold in the Content and/or Application, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the Appacitive Services you give Appacitive a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling Appacitive to provide you with the Appacitive Services. Furthermore, by creating an Application through use of the Appacitive Services, you give Appacitive a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Application for the sole purpose of enabling Appacitive to provide you with the Appacitive Services.

8.2

By adding a collaborator to your Application, you hereby grant to that user a non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to use, display, perform, reproduce, modify, publish, distribute, list information regarding, edit, translate and analyze such Application(s) and Content as permitted by the relevant Appacitive Services functionality or features for the sole purpose of collaborating on development of the Application(s).

8.3

You may choose to or we may invite you to submit comments or ideas about the Appacitive Services, including without limitation about how to improve the Appacitive Services or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Appacitive under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.

8.4

You agree that Appacitive, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Appacitive Services.

9. Recommendations

9.1

Appacitive may, and you grant us permission to, make recommendations via the Appacitive Services for products or services we think may be of interest to you based on your Application(s), Content, and/or use of the Appacitive Services. We will never make recommendations directly to your End Users.

10. Modification and Termination of the Appacitive Services

10.1

Appacitive is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Appacitive Services which Appacitive provides may change from time to time without prior notice to you, subject to the terms in Section 4.3. Changes to the form and nature of the Appacitive Services will be effective with respect to all versions of the Appacitive Services; examples of changes to the form and nature of the Appacitive Services include without limitation changes to fee and payment policies, security patches, added functionality, and other enhancements.

10.2

You may terminate these Terms at any time by canceling your account on the Appacitive Services. You will not receive any refunds if you cancel your account.

10.3

You agree that Appacitive, in its sole discretion and for any or no reason, may terminate your account or any part thereof. You agree that any termination of your access to the Appacitive Services may be without prior notice, and you agree that Appacitive will not be liable to you or any third party for such termination.

10.4

You are solely responsible for exporting your Content and Application(s) from the Appacitive Services prior to termination of your account for any reason, provided that if we terminate your account, we will provide you a reasonable opportunity to retrieve your Content and Application(s).

10.5

Upon any termination of the Appacitive Services or your account these Terms will also terminate, but Sections 6.1, 11, 12, 13, 14, and 18 shall continue to be effective after these Terms are terminated.

11. EXCLUSION OF WARRANTIES

11.1

NOTHING IN THESE TERMS, INCLUDING SECTIONS 12 AND 13, SHALL EXCLUDE OR LIMIT APPACITIVE’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.

11.2

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE APPACITIVE SERVICE IS AT YOUR SOLE RISK AND THAT THE APPACITIVE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”

11.3

APPACITIVE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE APPACITIVE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, APPACITIVE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE APPACITIVE SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE APPACITIVE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE APPACITIVE SERVICES WILL BE ACCURATE.

12. LIMITATION OF LIABILITY

12.1

SUBJECT TO SECTION 11.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT APPACITIVE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.

12.2

THE LIMITATIONS ON APPACITIVE’S LIABILITY TO YOU IN PARAGRAPH 13.1 ABOVE SHALL APPLY WHETHER OR NOT APPACITIVE HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

13. Indemnification

13.1

You agree to hold harmless and indemnify Appacitive, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners (collectively “Appacitive and Partners”) from and against any third party claim arising from or in any way related to
(a) your breach of the Terms,
(b) your use of the Appacitive Services,
(c) your violation of applicable laws, rules or regulations in connection with the Appacitive Services, or
(d) your Content or your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, Appacitive will provide you with written notice of such claim, suit or action.

14. Copyright Policy

14.1

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 Appacitive’s policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down content in your Application or, if necessary, the Application itself upon receipt of a valid DMCA notice.

15. Other Content

15.1

The Appacitive Services may include hyperlinks to other web sites or content or resources or email content. Appacitive may have no control over any web sites or resources which are provided by companies or persons other than Appacitive.

15.2

You acknowledge and agree that Appacitive is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.

15.3

You acknowledge and agree that Appacitive is not liable for any loss or damage which may be incurred by you or your End Users as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.

16. Changes to the Terms

16.1

Appacitive may make changes to the Terms from time to time. If we change the Terms in any substantive way, we will give you at least seven (7) days notice before the changes take effect, during which period of time you may reject the changes by terminating your account.

16.2

You understand and agree that if you use the Appacitive Services after the date on which the Terms have changed, Appacitive will treat your use as acceptance of the updated Terms.

17. General Legal Terms

17.1

The Terms constitute the whole legal agreement between you and Appacitive and govern your use of the Appacitive Services (but excluding any services which Appacitive may provide to you under a separate written agreement), and completely replace any prior agreements between you and Appacitive in relation to the Appacitive Services.

17.2

There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.

17.3

If Appacitive provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.

17.4

You agree that Appacitive may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Appacitive Services. By providing Appacitive your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.

17.5

You agree that if Appacitive does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Appacitive has the benefit of under any applicable law), this will not be taken to be a formal waiver of Appacitive’s rights and that those rights or remedies will still be available to Appacitive.

17.6

Appacitive shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.

17.7

The Terms, and your relationship with Appacitive under the Terms, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and Appacitive agree to submit to the exclusive jurisdiction of the courts located within the county of Santa Clara, California to resolve any legal matter arising from the Terms.

17.8

Neither party may assign any of its rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the entirety of its rights and obligations under these Terms, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of your use of the Appacitive Services upon written notice to the assigning party.
This document is an adaptation of the Google App Engine Terms of Service. The original work has been modified. Google, Inc. is not connected with and does not sponsor or endorse Appacitive or its use of the work.

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