Terms of service
INGENIUM MOBILE STUDIO provides development, hosting and application management services (collectively and including the Branded App described below the “Services”) that allow businesses to publish their products via mobile devices and other online platforms. This agreement covers the provision of the Services and you, by using, accessing, or attempting to interact with, INGENIUM MOBILE STUDIO websites, software, services, or any of their licensees’ services or software, agree to be bound and abide by the terms and conditions of this Agreement.
Development of Branded App and Use of Services.
You are engaging Atikara to create a custom- version of Atikara’s iPad app and to maintain it on your behalf. INGENIUM MOBILE STUDIO will develop the Branded App in accordance with the specifications set forth on. INGENIUM MOBILE STUDIO grants you a non-exclusive, non-transferable, non-sublicensable license to use and promote the Branded App for your own business purposes, subject to the terms and conditions of this Agreement and the timely payment of all fees.
INGENIUM MOBILE STUDIO will use commercially reasonable efforts to have the application approved by the appropriate mobile platform provider. Although there is a high likelihood of approval, we do not and cannot guarantee acceptance. If your application is denied by the appropriate mobile platform provider you may cancel your account, however there are no refunds under any circumstances.
You shall not, and shall not allow others to: (i) cause or permit the reverse engineering, disassembly or decompilation of any portion of the Services, (ii) remove any copyright notices or other proprietary notices or restrictions from the Services; (iii) distribute, sell, sublicense, rent, lease or use the Services except as provided herein, (iv) store any of the Services (including any portion of the software or documentation) on any computer or other device, or copy or otherwise use such information to create derivative works, or (v) undermine the security or integrity of or gain unauthorized access to the computing systems or networks of INGENIUM MOBILE STUDIO, its partners, or those accessed through or with the Services.
The Services constitute proprietary works of INGENIUM MOBILE STUDIO protected by copyright and other intellectual property laws. Except for the rights granted herein, INGENIUM MOBILE STUDIO retains all rights, title and interest, including all intellectual property rights, in the Services. The terms “purchase” and “sale” in reference to the Services notwithstanding, it is expressly agreed by the parties that title to the Services does not pass to you and your rights with respect to the Services will only be that of a licensee.
Content Display and License
Following development of the Branded App you may submit your content (“Content”) through your Services account for display on the Branded App. You hereby grant INGENIUM MOBILE STUDIO a nonexclusive, fully paid, worldwide right to display the Content within the Branded App and via the Services as may provided on Exhibit A. The Content constitutes your proprietary works protected by copyright and other intellectual property laws. Except for the rights granted herein, you retain all rights, title and interest, including all intellectual property rights, in the Content.
During the term of this Agreement, you hereby grant to INGENIUM MOBILE STUDIO a non-exclusive, non-transferable, non-sublicensable, royalty-free, worldwide license to use the trademarks, service marks, logos, designs, descriptions, trade usage, trade dress, copyrighted material whether now or in the future used or claimed by you, whether or not registered or the subject of registration application with the U.S. Patent and Trademark Office, any state or foreign trademark office or agency, all to the extent provided to INGENIUM MOBILE STUDIO by you (the “Licensee Marks”), in word, stylized and design formats as provided and approved by you for use on the Branded App and as otherwise required pursuant to this Agreement solely in connection with this Agreement.
INGENIUM MOBILE STUDIO does not allow any of the following content, or links to such content, to be published on the Service:
Content of a pornographic, sexually explicit, or violent nature.
Content of an illegal nature (including stolen copyrighted material).
Pirated software sites, including cracking programs or cracking program archives.
Content with the sole purpose of causing harm or inciting hate, or content that could be reasonably considered as slanderous or libelous.
If you post any of the above you will be notified by email and given a 48 hour grace period to make any corrective actions. If no corrective actions are taken, INGENIUM MOBILE STUDIO will suspend the Services provided to you until the issue is resolved. A repeated violation of this policy may cause cancellation of service without refund of any fees.
In addition, INGENIUM MOBILE STUDIO does not allow use of the Services through automated methods. Use of robots or other computer code which calls the Services, except where explicitly allowed, is absolutely forbidden.
INGENIUM MOBILE STUDIO may, but is not required to make any effort to validate information provided by you for use with Services for content, correctness or usability. The final choice of whether an account is in violation of any of these policies is at the sole discretion of INGENIUM MOBILE STUDIO.
You agree to pay the fees for the Services provided [complete]. All fees are due monthly in advance by automatic debit of the credit card or bank information you provided on establishment of the Services. INGENIUM MOBILE STUDIO may charge interest on late payments at the rate of 1.5% per month or, if less, the maximum rate permitted by applicable law.
INGENIUM MOBILE STUDIO will not, under any circumstances, issue refunds for Services rendered.
If you have a question about charges made to your account, please contact us immediately. If the charges were made in error, we will immediately credit your account or credit card account for the appropriate amount.
By virtue of this Agreement, each party may receive information from the other party that is confidential and not generally available to the public (“Confidential Information”). As to INGENIUM MOBILE STUDIO, Confidential Information includes, without limitation, the Services, related documentation, specifications, pricing, disclosures in connection with any technical support provided and the terms and conditions of this agreement. Confidential Information shall remain the sole property of the disclosing party or its licensors. Except for the Services, information/items will not be considered as Confidential Information if the receiving party can establish by documentary evidence that the information is or was: (i) lawfully available to the public through no act or omission of the receiving party; (ii) in the receiving party’s lawful possession prior to disclosure by the disclosing party and not obtained either directly or indirectly from the disclosing party; (iii) lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) independently developed by the receiving party. The parties agree, both during the term of this Agreement and for a period of five (5) years (or, as applicable, with respect to Confidential Information that is a trade secret, for an indefinite period) after its termination, to hold each other’s Confidential Information in confidence and not to disclose such information in any form to any third party without the express written consent of the disclosing party, except to employees and consultants performing services for the benefit of the receiving party who are under a written non-disclosure agreement protecting the applicable Confidential Information in a manner no less restrictive than this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of this Agreement. A receiving party facing legal action to disclose Confidential Information of the disclosing party shall promptly notify and provide the disclosing party the opportunity to oppose such disclosure or obtain a protective order and shall continue to treat such information as Confidential Information. This paragraph shall not be construed as granting or conferring any rights to either party by license or otherwise, expressly or implicitly, to any Confidential Information.
You represent and warrant that you own all right title and interest in the Content or have rights to such Content that permit you to transmit the Content through the Services for display as provided herein. You represent and warrant that the Content does not infringe any third party copyrights or patents.
Service Reliability and Warranties
The Services are offered on an “as is” basis and used by you solely at your own risk. Neither INGENIUM MOBILE STUDIO, its employees, directors, affiliates, agents, third party information providers, merchants licensers or the like, warrant that INGENIUM MOBILE STUDIO service will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of the Services or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the INGENIUM MOBILE STUDIO Service, unless otherwise expressly stated in this Agreement.
INGENIUM MOBILE STUDIO DISCLAIMS ANY WARRANTIES NOT SPECIFICALLY PROVIDED HEREIN, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT MAY BE SUFFERED BY YOU, OR VIEWERS AND USERS OF CONTENT OR THE SERVICES, INCLUDING LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES OR SERVICE INTERRUPTIONS BY ANY CAUSE OR ERRORS OR OMISSIONS OF THE SERVICES. USE OF ANY INFORMATION OBTAINED BY WAY OF INGENIUM MOBILE STUDIO IS AT YOUR OWN RISK, AND INGENIUM MOBILE STUDIO SPECIFICALLY DENIES ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH ITS SERVICES.
Damages claims for unavailability of the Services against INGENIUM MOBILE STUDIO are expressly limited to the pro-rata portion of any monthly charge pre-paid by you directly to INGENIUM MOBILE STUDIO for the period of the system unavailability. “System unavailability” shall be narrowly defined as an unscheduled outage of more than 2 hours, but in no case shall include outages for maintenance, upgrade or repair where users are provided notice of such outages in advance via the INGENIUM MOBILE STUDIO Service Blog.
Under no circumstances will INGENIUM MOBILE STUDIO bear any responsibility for any damages arising as a consequence of such unavailability.
You, at your own expense shall indemnify INGENIUM MOBILE STUDIO, its affiliates, successors, assigns, members, shareholders, officers, directors and agents against any third party claim or suit brought against you for damages to the extent due to any actual or alleged infringement of Intellectual Property Rights by the Content. The foregoing indemnity is subject to the following conditions: that (a) INGENIUM MOBILE STUDIO promptly notifies you in writing of each such claim or suit and provides you with all information known to INGENIUM MOBILE STUDIO relating thereto, (b) you at your option have sole control of the defense and/or settlement; and (c) INGENIUM MOBILE STUDIO cooperates with you in the settlement and/or defense. INGENIUM MOBILE STUDIO will be reimbursed for its reasonable out-of-pocket expenses incurred in providing any cooperation requested by you.
If the Content is, or in your opinion may become, the subject of any claim or suit for infringement of any Intellectual Property Rights, or if required by settlement, you at your expense and option may: (a) procure for you the right to continue using the Content or affected part; (b) replace the Content or affected part with software of equivalent functionality; (c) modify the Content or affected part to make it non-infringing while providing equivalent functionality.
Except as set forth above under no circumstances, including negligence, shall either party (including, its agents, its clients, its servants, officers, directors and employees) be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the Services or Content, as applicable; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to INGENIUM MOBILE STUDIO records, programs or services.
Except as set forth in the section entitled Indemnification, each party’s exclusive remedies for all damages, losses and causes of actions whether in contract, tort including negligence or otherwise, shall not exceed the aggregate dollar amount paid or payable to INGENIUM MOBILE STUDIO by you pursuant to this agreement during the current month.
Such limitations shall apply without limitation to any liability for damages caused or allegedly caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation of transmission, communications failure, theft of destruction of or unauthorized access to, alteration of, or use of records, whether for breach of contract, tortuous behavior, negligence, or under any other cause of action.
Term and Termination
The initial term of this agreement is twelve months, which will automatically renew indefinitely until terminated as provided herein.
This Service may be terminated by either party, without cause, by giving the other party 30 days written notice. You must cancel Services via Atikara support addresses.
Notwithstanding the above, INGENIUM MOBILE STUDIO may terminate Services at any time, without penalty and without notice, if you fail to comply with any of the terms of this Agreement or the intellectual property protections applicable to these Services.
No supplement, modification, or amendment of this agreement shall be binding, unless executed in writing by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under this agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. Any part of this agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute together a single document.
This Agreement shall supersede the terms of any prior agreement, purchase order or other arrangement between the parties as to the subject matter hereof.
All notices under this Agreement shall be sent in writing and shall be delivered by (i) personal hand delivery, (ii) first class mail with return receipt, (iii) overnight mail by recognized commercial carrier with tracking receipt, or (iv) confirmed email or fax and copied by one of the methods described in (i), (ii) or (iii) above, to you at the address provided by you when you registered for the Services and to INGENIUM MOBILE STUDIO at the address on the Contact Us page on Atikara’s website.
Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.
You agree that INGENIUM MOBILE STUDIO may use your name in INGENIUM MOBILE STUDIO’s customer list and may publish information identifying you as a user of the Services in advertisements, news releases and releases to professional and trade publications.
This Agreement constitutes the entire understanding of the parties, and is agreed to being entered into in the State of New York. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act.
This Agreement shall be governed and construed in accordance with the laws of Spain without regard to conflict of laws principles. Any legal action relating to this agreement will be brought in Barcelona, Spain, and the parties agree to the exercise of jurisdiction by a state court in such county.