TERMS OF SERVICE
AppSight (the "Service") is a service provided by Automatables Inc (Automatables). The following are the terms and conditions for use of the Service between Automatables Inc. and you (either an individual or a legal entity that you represent as an authorized employee or agent) ("You"). BY CLICKING THE "SIGN UP" BUTTON, AND/OR ACCESSING OR USING THE SERVICE, YOU ARE STATING THAT YOU ARE ELIGIBLE FOR AN ACCOUNT AND THAT YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS ("AGREEMENT"). The Service is offered to you conditioned on your acceptance of the terms and conditions contained herein. If you have entered into a separate written agreement ("Order Form") with Automatables governing your use of the Service, then the terms and conditions of that Order Form will prevail and govern, and any conflicting terms of this Agreement will not be given effect.
1. DEFINITIONS
"App Database" means the data stored about mobile applications, including SDKs used, deep links and other meta data.
"Software" means Automatables' proprietary Service software and servers (including, without limitation, the website, APIs, and App Database), which collects, analyzes, and displays data.
"Documentation" means any accompanying documentation made available to You by Automatables for use with the Software.
2. ACCOUNT
You can use the Service without signing up for an account. However, the Service may be limited in some form without an account.
If you sign up for an account, you must complete the registration process by providing Automatables with current, complete and accurate information as prompted by the registration form, including Your e-mail address (username) and password in order to use the Service. You are responsible for safeguarding the confidentiality of Your password(s) and username(s), and for any use or misuse of Your account resulting from any third party using a password or user name.
3. FEES
The Service is currently provided without charge to You for accessing the website version of the Service. Automatables reserves the right to limit or prevent Your access to the Service. Automatables may change its fees and payment policies for the Service from time to time in its sole and absolute discretion including but not limited to the addition of costs for certain services, or other fees charged to Automatables or its licensors by 3rd party vendors for the inclusion of data in the Service. The changes to the fees or payment policies are effective upon (i) Your acceptance of such changes which You will be informed of through your account, or (ii) Your continued use of the Service after notification of the changes to the fees and/or payment policies. If You do not accept such changes, Automatables reserves the right to limit, prevent, or terminate Your access to the Service without any notice or liability. Unless otherwise stated, all fees are quoted in U.S. Dollars and are due and payable on a monthly basis within 30 days from receipt of invoice. Any outstanding balance becomes immediately due and payable upon termination of this Agreement for any reason and any collection expenses (including attorneys' fees) incurred by Automatables will be included in the amount owed.
4. LICENSE
Subject to the terms and conditions of this Agreement, the data You access is for Your internal business purposes only. You may not sell, rent, license, disclose, or make the data publicly available without the permission of Automatables.
5. RESTRICTIONS
You will not nor will You allow any third party to (i) copy, modify, adapt, translate or otherwise create derivative works of the Software, App Database, or Documentation; (ii) scrape or attempt to scrape the App Database or Service; (iii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which You are located; (iv) rent, lease, sell, assign or otherwise transfer rights in or to the Software, the App Database, the Documentation or the Service; (v) remove any proprietary notices or labels on the Software or placed by the Service; or (vi) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software. You will use the Software, Service and Reports solely for Your own internal use, and will not make the Software or Service available for timesharing, application service provider or service bureau use. You will comply with all applicable laws and regulations in Your use of and access to the Documentation, Software, Service and Reports.
6. PROPRIETARY & INFORMATION RIGHTS
The Service (which includes but is not limited to the Software, the App Database, all intellectual property rights in the Service and all non-personally identifiable data obtained through the Service) is, and shall remain, the property of Automatables. All rights in and to the Software and Service not expressly granted to You in this Agreement are hereby expressly reserved and retained by Automatables and its licensors. Automatables may retain, use, and resell, subject to the terms of its Privacy Policy, information collected in Your use of the Service.
7. CONFIDENTIALITY
"Confidential Information" includes any proprietary data and any other non-public information disclosed by one party to the other that is marked (if in writing) or identified (if disclosed orally) as "confidential". Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed 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. In which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such.
8. SERVICE LEVELS
Automatables does not guarantee the Service will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of Your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond Automatables' (or its licensors' or service provider's) control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Automatables or Your servers are located or co-located.
9. TERMINATION
You may terminate Your use of the Service at any time and for any reason. Automatables may also suspend your access to the Service or terminate this Agreement at any time for any reason. Upon any termination of this Agreement, Automatables will cease providing the Service, and You will cease any further access or use of the Service. In the event of any termination (a) You will not be entitled to any refunds of any fees, and (b) any (i) outstanding balance for Service rendered through the date of termination, and (ii) other unpaid payment obligations during the remainder of the Term will be immediately due and payable in full and (c) all of Your historical report data will no longer be available to You unless a purchase or professional services agreement for the exchange and transfer of such data is entered into as a component of termination. The following sections of this Agreement will survive termination: 1, 5, 6, 7, 8, 10, 11, 12, 13 and 16.
10. DISPUTE RESOLUTION
If you reside in the United States, you and Automatables agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services or use of the Site, Application or Content (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and Automatables are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding. Further, unless both you and Automatables otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms. Arbitration Rules and Governing Law. This agreement to arbitrate evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1--800--778--7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section. Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Massachusetts and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. Arbitration Location and Procedure. Unless you and Automatables otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Automatables submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Arbitrator's Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. Automatables will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration. Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $25,000, Automatables will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). Changes. Notwithstanding the provisions of the "Modification" section above, if Automatables changes this "Dispute Resolution" section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within 30 days of the date such change became effective, as indicated in the "Last Updated" date above. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Automatables in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
11. INDEMNIFICATION
You agree to indemnify, hold harmless and defend Automatables from any and all third-party claims, actions, proceedings, and suits brought against Automatables or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Automatables arising out of or relating to (i) Your breach of any term or condition of this Agreement (including, without limitation, Section 6), (ii) Your unauthorized use of the Service, or (iii) Your violations of applicable laws, rules or regulations in connection with your use of the Service, the Software and/or Your Mobile Properties. In such a case, Automatables will provide You with written notice of such claim, suit or action.
12. DISCLAIMER OF WARRANTIES
The information and services included in or available through the Service, including the Reports, may include inaccuracies or typographical errors. Automatables does not represent or warrant that the Service or the Software will be uninterrupted or error-free, that all defects will be corrected, or that the Service or the Software are completely free of viruses or other harmful components. Automatables does not warrant or represent that the use of the Service, Software or the Reports will be correct, accurate, timely or otherwise reliable. You specifically agree that Automatables will not be responsible for unauthorized access to or alteration of the Customer Data or data from Your Mobile Properties. THE SERVICE, THE SOFTWARE AND REPORTS ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY AUTOMATABLES AND/OR ITS LICENSORS, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, THE SOFTWARE, THE DOCUMENTATION AND REPORTS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. Some states do not allow exclusion of an implied warranty, so this disclaimer may not apply to You.
13. LIMITATION OF LIABILITY
AUTOMATABLES WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF AUTOMATABLES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The exclusion contained in this paragraph shall apply regardless of the failure of the exclusive remedy provided in the following paragraph. Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the foregoing limitations or exclusions may not apply to You. Automatables' total cumulative liability for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed the amount paid by You in the 12 months preceding the claim.
14. US GOVERNMENT RIGHTS
If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government's rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.
15. MODIFICATIONS
Automatables reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the Service, at any time, by posting the new agreement. You are responsible for regularly reviewing the policy. No amendment to or modification of this Agreement will be binding unless You continue to use the Service after Automatables has posted such updates to the Agreement or to any policy governing the Service.
16. GENERAL
This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between You and Automatables concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of Your rights hereunder without Automatables' prior written consent, and any such attempt is void. The relationship between Automatables and You is not one of a legal partnership relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. This Agreement shall be governed by and construed under the laws of the state of Massachusetts without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Massachusetts law, rules, and regulations, Massachusetts law, rules and regulations shall prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Suffolk County, Massachusetts.