This User Agreement (“Agreement”) is made between DevMate Inc., a Delaware corporation located at 5201 Great America Parkway, Suite 320, Santa Clara, CA 95054 (“DevMate”, “we” or “us”) and the person or organization listed on the registration form accompanying this Agreement.
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE ACCESSING, ACCEPTING AND USING THE DEVMATE SERVICE (the “Service” or the “Services”) PROVIDED BY DEVMATE, INC. ON DEVMATE.COM. ANY USE OF THE SERVICES FROM DEVMATE.COM WILL SIGNIFY YOUR AGREEMENT TO BE BOUND BY THESE TERMS OF SERVICE. ALL TERMS, POLICIES AND GUIDELINES REFERENCED HEREIN OR PUBLISHED ON DEVMATE.COM ARE INCORPORATED BY THIS REFERENCE HEREIN AND ARE APPLICABLE TO YOU.
The Service is offered to you by us conditioned on your acceptance without modification of this Agreement. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE ANY OF THE SERVICES. This Agreement governs your use of all aspects of the Service on DevMate.com (the “Website”), and any associated documentation, frameworks, services, or other materials made available by us.
We have developed the Service as a development and distribution assistance platform for software developers and publishers. The latest and most updated description of the Service and its features is available on the Website. We may modify or alter any aspect of the Service at any time in our sole discretion with or without prior notice. If you are dissatisfied with any aspect of the Service at any time, your sole and exclusive remedy is to cease using it and to terminate this Agreement as provided herein. We reserve the right to discontinue, temporarily or permanently, the Service (or any part thereof) by providing you with (30) days’ prior notice of such change, either by email or by posting such notice to your DevMate account. Your access to the Service is governed by the Service Level Agreement.
This Agreement constitutes a nonexclusive, limited license giving you the right to access and use the Service only as described herein. We reserve all other rights. You may use the Service only as expressly permitted in this Agreement. This license does not permit you to work around any technical limitations in the Service or introduce or use any device, software, or routine that interferes or attempts to interfere with the operation of the Service or reverse engineer, decompile or disassemble the Service. You may not rent, lease, sublicense, or lend the Service or any of its components in any manner. You agree that you are solely liable for all costs, fees, and other expenses resulting from your use of the Service. This specifically includes, but is not limited to, incidental costs you incur in connection with your use of the Service.
The Service is provided on a pay as you go basis and Monthly Charges are based on the number of the Active Users. The following terms will be used in this section:
Application. For purposes of this section, Application means a piece of Content or Application you upload to the Service.
Active Users. Active Users are defined as customers who launch and use your Application at least once during the Payment Period.
Payment Period. The Payment Period is 1 month. Your first Payment Period commences on the Effective Date, and Payment Periods recur until the end of the Payment Period in which this Agreement is terminated.
Pricing Tiers. The term Pricing Tiers refers to the various levels of the Monthly Charges for the Service, available at http://devmate.com/pricing. Feature Sets. Each Pricing Tier has its own Feature Set which are described at http://devmate.com/pricing.
Monthly Charges. The term Monthly Charges refers to the charges for the Service for each Payment Period during the term of this Agreement. Monthly Charges for the Service depend on the selected Price Tier and the number of Active User of all your Applications. Fees for the Monthly Charges are available at http://devmate.com/pricing.
At the end of the Payment Period, your payment method on file will be charged the applicable rate for the Pricing Tier and the number of Active Users the Application had at the end of that Payment Period.
Upgrade to a higher Pricing Tier will take an immediate effect with setting a new Effective Date to the day of the upgrade.
Downgrade to a lower Pricing Tier will take effect in the end of the current Payment Period providing the number of Applications and other criterias described at Premium Plan Downgrade are within the lower Tier’s threshold. Premium Plan Downgrade is available at http://dashboard.devmate.com.
If we do not have billing information for you, or if the billing information we have for you is incorrect, we will send you email. If we do not receive valid billing information from you prior to the end of the Payment Period in which we sent the notification email, we will place your Account in a Suspended State.
a. Term. This Agreement shall be ongoing. You can terminate the Agreement by unsubscribing from the Service in your DevMate account. We reserve the right to discontinue offering the Service at any time in our sole discretion by giving you thirty (30) days prior written notice. During the notice period the Service will function normally. You with this Agreement.
b. Termination for Breach. Notwithstanding anything contained in the Agreement to the contrary, we may, in our sole discretion, terminate or suspend your access to or use of the Service immediately and at any time upon a determination that you or any party affiliated with you has fraudulently used the Service, engaged in deceptive practices, or otherwise breached this Agreement.
c. Termination for Nonpayment. If we do not receive any subscription fee when due, we will automatically place your account in a Suspended State.
d. Account Suspension Status. Your account may be placed in a Suspended State (“Suspended State”) for up to thirty (30) days and during such period the Service will operate normally and you will have limited access to your account. Before the end of the Suspended State period you may terminate your account or request that we reactivate your account. If you do not request account reactivation before your account has been in a Suspended State for thirty (30) days, we may terminate your account immediately.
You acknowledge that termination and/or monetary damages may not be a sufficient remedy if you breach this agreement and that we will be entitled, without waiving any other rights or remedies, to injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction in the event of a breach. Upon the expiration or any termination of this Agreement, you must cease using the Service. This Agreement survives termination of this Service or any discontinuation of the Service.
If you create content on the Service, upload files to the Service, or otherwise make (or allow any third party to make) material available by means of the Service (any such material, including any applications, referred to collectively as “Content”), you are wholly responsible for the content of, and any harm resulting from the Content, irrespective of the form of such Content. By creating or otherwise making Content available on the Service, you grant us a nonexclusive license to distribute such Content on the Service during the term of this Agreement. Further, you represent and warrant that:
a. You own or have the legal right to upload, use, and distribute the Content and your use and
distribution of the Content does not violate any laws or infringe on the ownership or other
intellectual property rights of any third parties;
b. The downloading, copying and use of the Content by us and/or any third parties permitted hereunder will not infringe the proprietary or intellectual property rights of any third party, including, but not limited to: copyright, patent, trademark or trade secret rights;
c. If your employer has rights to intellectual property you create, you have either (i) received permission from your employer to post or make available the Content, including but not limited to any software, or (ii) secured from your employer a waiver as to all rights in or to the Content;
d. You have fully complied with any third party licenses relating to the Content, and have done all things necessary to successfully pass through to end users any required terms;
e. The Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful, destructive or abusive code or content;
f. The Content is not libelous or defamatory, does not contain threats or incite violence towards individuals or entities, and does not violate the privacy rights of any third party;
g. You have, in the case of Content that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the materials.
Service Use Prohibitions. You agree not to: (a) decompile, reverse engineer, disassemble, or modify the Service, create derivative works based upon the Service or any part thereof; (b) disable any licensing or control features of the Service; (c) introduce into the Service any virus, robot, electronic agent, automated system, or other code or routine intended to disrupt or damage the Service, or alter, damage or delete any content, or retrieve or record information about the Service or its users; (d) merge the Service or content thereon with another program or create derivative works based on the Service or content therefrom; (e) remove, obscure, or alter any notice of the copyright or other proprietary legends on the Service or content; (f) sublicense, assign, translate, rent, lease, lend, resell for profit, distribute or otherwise assign or transfer the content or access to the Service to others; (g) use, or allow the use of, the Service or the content thereon in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; (h) otherwise act in a fraudulent, illegal, malicious or negligent manner when using the Service; (i) use any contact information that may appear on the Service (including but not limited to telephone numbers, fax numbers or email addresses) for purposes of marketing or promoting any goods or services, whether on your own behalf of on behalf of a third party; (j) publish falsehoods or misrepresentations that could damage the Service, us or any third party; (k) submit material that is unlawful, obscene, lewd, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, excessively violent, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate or objectionable; or (l) impersonate another person, real or fictitious. Except as expressly provided herein, we reserve all rights with respect to the Service, and may pursue all legally available options under both civil and criminal laws (and may cooperate with law enforcement agencies) in the event of any violations.
Application Prohibitions. If you use the Service to make any applications available to us or to any third parties (“Applications”), you represent and warrant that such Applications shall not: (a) be racist, supportive of terrorist activities, defamatory, libelous, unlawfully threatening or unlawfully harassing; (b) contain nudity, violence, or offensive subject matter or contains a link to an adult website; (c) intentionally solicit personal information from anyone under eighteen (18) years of age without expressly complying with all applicable laws; (d) harass or advocate harassment of another person; (e) infringe any third party’s copyright, trademark, service mark, trade secret, or other proprietary rights or rights of publicity or privacy; (f) promote information, material, or content that is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory, libelous, obscene, scandalous, inflammatory, pornographic, or profane material, or any other content that could give rise to any civil or criminal liability under the law; (g) involve the transmission of “junk mail,” “chain letters,” unsolicited mass mailing, or “spamming”; nor (h) violate any law or regulation (including without limitation those governing consumer protection, unfair competition, antidiscrimination or false advertising).
In conjunction with your use of the Service, we may provide certain support services to you (“Support Services”). With respect to any technical or other information you provide to us in connection with the Service or any Support Services, you agree that we have an unrestricted right to use such information for product support and development. We will not use such information in a form that personally identifies you.
From time to time, you may provide us with feedback about the Service. In doing so, you grant to us the right to, without charge, use, share and commercialize your feedback in any way and for any purpose. You also irrevocably grant to third parties, without charge, any patent rights necessary for their products, technologies and services to use or interface with any specific parts of a DevMate software or service that incorporates such feedback.
To register for the Service, you must complete the registration process at the Website, or such other URL that we may provide from time to time, by completing the registration form thereon. Upon registration for the Service, you will be required to provide us with your email or username and a password. You acknowledge and agree 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. We 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 us of any unauthorized use of your password or username or any other breach of security and to indemnify and hold us harmless from and against all damages or claims arising from unauthorized use of the Service. If a password is lost or stolen, you must change the password and immediately notify us of the lost password so that your account remains both secure and functional.
“Confidential Information” includes any proprietary data and any other information disclosed by one party to the other in writing and marked “confidential” or “privileged” or disclosed orally and, within fifteen 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 and hold harmless us and our officers, directors, employees, suppliers, users or affiliates, from and against any and all third party claims, liabilities, penalties, settlements, judgments, losses, damages, fines and expenses (including attorney’s fees and costs) arising out of or relating to (a) any claims that you have used the Service in violation of another party’s rights, in violation of any law, in violations of any terms of this Agreement, or (b) any content that you or anyone using your account may submit or access in the course of using the Service; (c) your use of, or inability to use, the Service, including data loss or downtime resulting from any of our or any third party’s act, consistent with the Service Level Agreement; (d) your violation of the terms of this Agreement or the representations or warranties herein; and (e) any violation or failure by you to comply with all laws and regulations in connection with your use of the Service, whether or not described herein. In turn, we agree to indemnify and hold harmless you and your officers, directors, employees, suppliers, users or affiliates, from and against any and all third party claims, liabilities, penalties, settlements, judgments, losses, damages, fines and expenses (including attorney’s fees and costs) arising out of or relating to (a) any claims that the Service itself violates another party’s rights or (b) our violation of the terms of this Agreement or our representations or warranties herein.
You bear the risk of using the Service. To the extent permitted under relevant law, WE DISCLAIM 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 WARRANTIES OF PERFORMANCE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. FURTHER, WE DO NOT MAKE, AND HAVE 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. IN NO EVENT SHALL WE, OUR SUBSIDIARIES, AFFILIATES OR ANY OF OUR OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY, UNDER ANY THEORY, INCLUDING WITHOUT LIMITATION NEGLIGENCE, FOR DAMAGES OF ANY KIND ARISING FROM OR RELATED TO THE SERVICE, THE SERVICE OR ANY INFORMATION, CONTENT OR MATERIALS IN OR ACCESSIBLE THROUGH THE SERVICE, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, ACTUAL, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS, THAT RESULT FROM YOUR USE OF, OR INABILITY TO USE, THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. WE PROVIDE DEVMATEKIT ON THE SERVICE, WHICH IS DESIGNED IN PARTICULAR TO PREVENT HACKING AND TO PROTECT THE CONTENT FROM ILLEGAL USAGE; HOWEVER, WE MAKE NO REPRESENTATION AND WARRANTY REGARDING SUCH KIT OR ITS EFFECTIVENESS. YOU ACKNOWLEDGE AND AGREE THAT SUCH KIT MAY NOT BE EFFECTIVE, YOU BEAR THE RISK OF HACKING, DISASSEMBLY, MODIFICATION, REVERSE ENGINEERING OR ILLEGAL USAGE OF THE CONTENT AND THAT WE SHALL NOT BE LIABLE FOR THE SAME. IN NO EVENT SHALL OUR TOTAL LIABILITY, UNDER ANY THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED ONE HUNDRED AND FIFTY U.S. DOLLARS ($150).
This Agreement constitutes the entire agreement between you and us and governs your use of the Service, superseding any prior agreements between you and us with respect to the Service.
If you use the Service on behalf of any third party, you represent and warrant that you are authorized to act on behalf of, and bind to this Agreement, such third party. You shall ensure that each such third party is bound by and abides by the terms of this Agreement. You agree to indemnify, hold harmless and defend, at your expense, us and our parents, subsidiaries, affiliates, officers and employees, 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 us, arising out of or relating to (a) any representations and warranties made by you concerning any aspect of the Service; (b) any claims made by or on behalf of any third party pertaining directly or indirectly to your use of the Service; (c) violations of your obligations of privacy to any third party; and (d) any claims with respect to acts or omissions of third parties in connection with the Service.
This Agreement does not transfer to you any of our or any other third party’s intellectual property, and all right, title and interest in and to the Service, together with its codes, sequences, derivative works, organization and structure, any documentation, data, or other related materials, and all other of our or third party intellectual property will remain (as between the parties) solely with us. The Service contains trade secrets and proprietary information owned by us and protected by United States copyright laws (and other laws relating to intellectual property). MacPaw, DevMate, the DevMate logo, and all other trademarks, service marks, graphics and logos used in connection with DevMate or the Service are our trademarks or those of our licensors. Other trademarks, service marks, graphics and logos used in connection with the Service may be the trademarks of other third parties. Your use of the Service grants you no right or license to reproduce or otherwise use any of our trademarks or those of any third parties.
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 shall endeavor to give effect to the parties' intentions as reflected in such provision, and the other provisions of this Agreement remain in full force and effect. Our delay or failure to exercise any right under this Agreement or to take any action against you in the event of any breach of this Agreement shall not constitute a waiver of such right, or any other right, or of such breach or any future breaches under this Agreement.
Any controversy or claim arising out of or relating to this Agreement or its breach shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with AAA’s then current rules; provided, however, that you may assert a claim in small claims court if your claim qualifies, further provided that you file such small claims suit in a jurisdiction permitted by this Agreement. The parties hereto expressly give up the right to sue in a court of law or equity, including the right to a trial by jury, other than in an action for temporary or permanent injunctive relief. The parties hereby agree that the statutes of limitation and repose of the laws of the State of California shall apply to all arbitration proceedings arising out of or relating to this Agreement such that all claims, which would have been barred, waived, limited or restricted by such laws if filed with the judiciary, shall also be forever barred from claims under any applicable arbitration (or mediation) proceedings. Failure to institute an arbitration (or mediation) proceeding within the periods for filing a claim or initiating a suit under such laws shall constitute an absolute bar to the institution of any such arbitration (or mediation) proceedings respecting such controversy or claim, and a waiver thereof.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial.
Notwithstanding anything to the contrary in this Agreement, we may seek injunctive or other relief in any state, federal or national court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity’s intellectual property or proprietary rights. You further acknowledge and agree that our rights in the Content are of a special, unique, extraordinary character, giving them particular value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.
This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of California. Any legal action or proceeding with respect to this Agreement or any document related hereto shall be brought only in a United States District Court sitting within 50 miles of Santa Clara, California, and, by execution and delivery of this Agreement, you accept for yourself and in respect of your property, generally and unconditionally, the jurisdiction of the aforesaid courts. You hereby irrevocably waive any objection, including, without limitation, any forum non conveniens, which you may now or hereafter have to the bringing of such action or proceeding in such respective jurisdictions.
Last updated on: April 23, 2015