The following are the terms and conditions for use of Modentify's Reconify Platform (the "Service") between Modentify 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 Modentify 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.
"API Request" is the unit of measurement for usage of the Service. An API Request occurs when the SDK is executed in a mobile application or mobile web page to send data to, or request data from, the Service. An API Request also occurs when another service or website programmatically sends data to, or requests data from, the Service.
"Customer Data" means the data concerning the characteristics, activities, and applications of visitors to your Mobile Properties that is collected through use of the SDK and analyzed by the Software.
"Documentation" means any accompanying documentation made available to You by Modentify for use with the Software, including any API documentation.
"Mobile Properties" means Your mobile applications and/or mobile web sites.
"Report" means the resulting analysis provided through the Services for Your Mobile Properties.
"SDK" means the library of code, which is installed in a mobile application or on a web page for the purpose of collecting Customer Data, together with any fixes, updates, and upgrades provided to you by Modentify.
"Software" means Modentify's proprietary Service software and servers (including, without limitation, the SDK), which analyzes the Customer Data and generates the Reports.
You must complete the registration process by providing Reconify 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 user name(s), and for any use or misuse of Your account resulting from any third party using a password or user name. By creating an account, You represent and warrant that You are the legal owner (or an authorized employee or agent) of the Mobile Property for which the Service will be provided through Your account.
The Service is currently provided without charge to You for up to 100,000 API Requests per month per account. You must purchase (or Your Account will be converted to) a paid version of the Service if You exceed this limit. Modentify reserves the right to limit or prevent Your access to the Service, including any Reports, if You are exceeding this limit and have not converted to a paid edition. Modentify 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 a change in the number of API Requests, the addition of costs for certain services, or other fees charged to Modentify or its licensors by 3rd party vendors for the inclusion of data in the Reports. 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, Modentify 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 Modentify will be included in the amount owed.
Subject to Your compliance with the terms and conditions of this Agreement, Modentify hereby grants You a limited, revocable, non-exclusive, non-sublicensable license to (i) install, copy and use the SDK solely as necessary to use the Service for Your Mobile Properties, and (ii) use the Documentation solely for the purposes of developing, implementing and integrating interfaces to the Service for your Mobile Properties. Subject to the terms and conditions of this Agreement, You may remotely access, view and download Your Reports made available by Reconify. The Reports are for Your internal business purposes only. You may not sell, rent, license, disclose or make the Reports publicly available without the permission of Modentify.
You will not nor will You allow any third party to (i) copy, modify, adapt, translate or otherwise create derivative works of the Software, or the Documentation; (ii) 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; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the SDK, the Software, the Documentation or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; or (v) 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.
The Service (which includes but is not limited to the SDK, the Software, all intellectual property rights in the Service and all non-personally identifiable data obtained through the Service) are, and shall remain, the property of Modentify. All rights in and to the Software and Service not expressly granted to You in this Agreement are hereby expressly reserved and retained by Modentify and its licensors.
"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.
Modentify 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 Modentify's (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 Modentify or Your servers are located or co-located.
You may terminate Your use of the Service at any time and for any reason. Modentify may also suspend your access to the Service or terminate this Agreement at any time for any reason. Upon any termination of this Agreement, Modentify will cease providing the Service, and You will delete all copies of SDK from all Mobile Properties and 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, 9, 11, 12, 13, 14, and 17.
You agree to indemnify, hold harmless and defend Modentify from any and all third-party claims, actions, proceedings, and suits brought against Modentify 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 Modentify 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, Modentify will provide You with written notice of such claim, suit or action.
The information and services included in or available through the Service, including the Reports, may include inaccuracies or typographical errors. Modentify 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. Modentify 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 Modentify 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 MODENTIFY 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.
MODENTIFY 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 MODENTIFY 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. Modentify's 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.
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.
Modentify 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, which You will be informed of through your account. You are responsible for regularly reviewing the policy. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of Modentify, (ii) You accept updated terms online, or (iii) You continue to use the Service after Modentify has posted updates to the Agreement or to any policy governing the Service.
This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between You and Modentify 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 Modentify's prior written consent, and any such attempt is void. The relationship between Modentify 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 California without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and California law, rules, and regulations, California law, rules and regulations shall prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in San Francisco County, California.