PLEASE READ THIS AGREEMENT (“AGREEMENT“) BEFORE REGISTERING FOR OR USING THE GETSOCIAL SERVICE (THE “SERVICE”) AND/OR DOWNLOADING OR USING THE GETSOCIAL SOFTWARE DEVELOPMENT KIT (THE “SDK“) OR ANY OTHER SOFTWARE THAT IS AVAILABLE VIA THE GETSOCIAL SERVICE (“SOFTWARE”): By selecting the “Sign up” button, or otherwise accessing and using the Service or downloading, installing or using the SDK or any Software, you acknowledge that you, on your own behalf as an individual and on behalf of your employer or another legal entity (collectively “you” or “your“), have read and understood and agree to comply with the terms and conditions of this Agreement, and are entering into a binding legal agreement with Keywords Studios Netherlands B.V. d/b/a GetSocial (“GetSocial“, “we“, “our” or “us“). If you are entering into this Agreement on behalf of your employer or other legal entity then you represent and warrant that you have full authority to bind said employer or other legal entity to this Agreement. If you do not agree to comply with and be bound by this Agreement or do not have authority to bind your employer or other legal entity, please do not accept this Agreement or use the Service, SDK or Software.
- Description of the Service
The GetSocial Service (the “Service“), among other things, is intended to enable developers (our customers) to include user engagement, virality and other social elements to their software applications. Developers may access the Service via a developer account on our website www.getsocial.im (the “Site”). Our SDK and other Software, and information related to the usage of a developer’s software application can be accessed via the Service. All references to the Service in this Agreement shall include the SDK and the Software.
In order to use the Service, you have to create an account (“Account“). You must not allow anyone other than yourself or an authorized employee or agent acting on your behalf (“Authorized User“) to access and use your Account. You acknowledge and agree: (i) to provide accurate and complete Account and login information; (ii) to keep, and ensure that Authorized Users keep, all Account login details and passwords secure at all times; (iii) that you remain solely responsible and liable for the activity that occurs in connection with your Account, and (iv) to promptly notify GetSocial in writing if you become aware of any unauthorized access or use of your Account or the Service. Without derogating from your payment obligations, you may send us an email request to email@example.com to cancel or delete your Account at any time.
Without derogating from section 2.1 above, if you create an Account for your employer, company, business or organization (“Company”) then you acknowledge that the Company will be our customer. In such an event this Agreement will be a binding legal agreement between the Company named in the Account and GetSocial. As mentioned above, if you do not have authority to bind your Company, please do not accept this Agreement or use the Service, SDK or any Software. All references in this Agreement to “you” or “your” shall be taken to include your Company.
- Age Restriction
The Service is only intended for individuals aged thirteen (13) years or older. If you are under 13 years please do not register an Account or use the Service. If you are between 13 and 18 years of age, then you must review this Agreement with your parent or guardian before registering an Account or using the Service to make sure that you and your parent or guardian understand the terms and conditions of this Agreement and agree to them. Please note the above is separate from any age restrictions that may apply to data capture in your App.
- The SDK
Subject to the terms and conditions of this Agreement, GetSocial hereby grants you a non-exclusive, limited, revocable, personal, non-transferable, non-sublicensable license during the term of this Agreement to use the SDK (in binary executable form only) for the sole purpose of adding the SDK’s functionality to your software application (“App“).
- Integration Plan
We may offer different SDK subscription plans, comprising different features and services, to choose from (each an “Integration Plan“). The details of any Integration Plan, including the related subscription fees and features, are published on the Site at Pricing. Your use of the SDK is subject to the features of your designated Integration Plan as well as this Agreement and your payment of any related subscription fee. We reserve the right to change the features, and subscription fee, of an Integration Plan at any time by posting the updated features and pricing on the Site at Pricing.
- The Software
- Subject to the terms and conditions of this Agreement, GetSocial hereby grants you a non-exclusive, limited, revocable, personal, non-transferable, non-sublicensable license during the term of this Agreement to use the Software (in binary executable form only) but solely incorporated into your App.
- Notwithstanding section 4.1 above, you acknowledge and agree that certain Software may be subject to its own specific license agreement (“License Specific Software”). If you download and/or use License Specific Software then you agree to read and be bound by the license agreement or license terms and conditions for the License Specific Software (“Specific Software Terms”) prior to downloading or using said Software. To the extent of any inconsistency or conflict between the provisions of this Agreement and the provisions of the Specific Software Terms, the provisions of the Specific Software Terms shall prevail.
- SDK and Software Restrictions
You may not directly or indirectly, and shall not permit any third party to: (i) use or access the SDK or Software, except under the terms and conditions of this Agreement; (ii) alter, merge, adapt, modify, translate, reverse engineer, decompile or disassemble the SDK or Software; (iii) derive, or attempt to derive, the source code of the SDK or Software or reduce the SDK or Software to a human-perceivable form; (iv) create derivative works of the SDK or Software; (v) sell, rent, lease, transfer, sublicense, or otherwise transfer or distribute rights to the SDK or Software, except to the extent that the SDK or Software is integrated into your App in accordance with this Agreement (for the avoidance of doubt, you may not distribute the SDK or Software as a stand-alone product); (vi) copy the SDK or Software (except for back-up or archival purposes); (vii) remove any proprietary notices or labels on or affixed to the SDK or Software or any copies thereof, or use the GetSocial Marks (defined below) for any purpose except as expressly permitted herein; (viii) use the SDK or Software to develop any product other than your App; (ix) use the SDK or Software to develop any software or product which is the same as or similar to or competes with the SDK or Software; (x) except as permitted herein for your own internal testing and evaluation purposes in connection with your App, use the SDK or Software for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; (xi) access, store, distribute, or transmit during the course of use of the SDK or Software any unlawful, threatening, libelous, obscene or infringing material or any viruses, trojan horses, malware or other harmful computer code, files or programs; (xii) interfere with or disrupt the integrity or performance of the SDK or Software; (xiii) work around any technical limitations in the SDK or Software, or use any tool to enable features or functionalities that are otherwise disabled in the SDK or Software, or (xiv) use the SDK or Software for any unlawful purpose, or one that could associate GetSocial with any improper or inappropriate purpose.
- Security Mechanism
GetSocial reserves the right to include a security mechanism within the SDK or Software to control access to and/or use of the SDK or Software in order to enforce the license terms granted herein.
- Service Restrictions
You shall not, and shall not permit any third party to: (i) copy, distribute or modify any part of the Service or to copy, use, modify, create derivative works of, transfer (by sale, resale, license, sublicense, download or otherwise), reproduce, distribute, display or disclose Content (defined below), except as expressly authorized herein; (ii) decompile, disassemble, reverse-engineer, or derive or attempt to derive the source code form of, the Service; (iii) disrupt any servers or networks connected to the Service; (iv) use or launch any automated system (including without limitation, “robots” and “spiders”) to access the Service; (v) circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or that enforce limitations on use of the Service; (vi) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices, contained in or displayed on the Service; (vii) use the GetSocial Marks without our prior written consent; (viii) use the Service to develop a competing service or product; and/or (ix) use the Service to violate any applicable laws, rules or regulations, or for any unlawful, harmful, irresponsible, or inappropriate purpose, or in any manner that breaches this Agreement.
- SDK and Software Restrictions
- Payment Method
You may pay for purchases on the Site by choosing one of the payment methods that we display on the Site, or any alternate payment method agreed upon mutually.
- Payment Processing
- Payment Terms
All payments due to GetSocial: (i) are quoted and shall be paid in US Dollars: (ii) are due within thirty days of the date of invoice (unless an automated payment is selected, in which case the payment is due on the date of the automated payment); (iii) are non-cancellable and non-refundable; (iv) are exclusive of all taxes, levies, or duties, which are your responsibility; and (v) shall be made without any deduction for, or on account of, and free and clear of, any taxes. In the event that you are required by applicable law to withhold taxes imposed upon you for any payment to us then the amount due to GetSocial shall be increased by the amount necessary so that we receive an amount equal to the sum we would have received had you not made any withholding.
- Timely Payments
Your participation in an Integration Plan is subject to your timely payment of the applicable subscription fee which is displayed on the Site and in your Account. Please be aware that any failure to pay the subscription fee on time may result in you not having access to some or all of the SDK. Overdue payments shall accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law. If you fail to pay the related subscription fee on time, we reserve the right to: (i) either, in our sole discretion, terminate your use of the SDK and (ii) initiate recovery actions and proceedings against you for the unpaid but due amounts. You agree to reimburse us for our recovery costs and expenses if we commence any recovery action or proceedings or if we are required to take any action as a result of you not having adequate funds in your designated payment method.
- Loss of SDK
You agree that GetSocial is not responsible or liable for any loss of your App and its associated services, or any loss of potential monetary gain, or loss of time, or loss of resources, or any loss of functionality or features in your App and its associated services, that may result from the SDK, or your designated Integration Plan, being unavailable because of your failure to pay the related SDK subscription fee on time.
- Payment Method
- Responsibility for your App
- You represent and warrant that: (i) you own, or have obtained, the right to integrate our SDK with your App and to distribute your App to your end users; (ii) your App does not infringe or otherwise violate or misappropriate any intellectual property or other proprietary rights, or privacy or publicity right held by any third party, (iii) your App is not unlawful, does not violate any law and is not otherwise inappropriate; and (iv) your App does not contain software viruses, or other harmful computer code, files or programs.
- You are solely responsible to: (i) verify that your App may be distributed via the third platform distribution channel, such as the Apple App Store or Google Play (each a “Distribution Channel”) that you choose to interact with; (ii) to comply, and ensure that your App complies, with the rules and terms and conditions of any such Distribution Channel, and (iii) submit your App to the Distribution Channel that you wish to use to distribute your App and to maintain your App for such time as you wish to distribute or otherwise make available your App. You are solely responsible for your interaction and relationship with your App end users and any Distribution Channel.
- As between yourself and GetSocial, you are solely responsible and liable for: (i) your App and its associated services; (ii) marketing, offering, distributing or otherwise making available your App; (iii) providing any and all maintenance and support services in connection with your App to your end users; (v) any App-related warranties, whether express or implied by law, to the extent not effectively disclaimed; and (iv) addressing any App claims that an end user, or any third party, may have relating to your App, including, but not limited to: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; (c) claims arising under consumer protection or similar legislation, and/or (d) a third party claim that your App infringes or violates the intellectual property, privacy, publicity or other rights of a third party. You agree to defend, indemnify, hold us harmless, and expressly release us, from any and all liability arising from the foregoing.
- Term and Termination
This Agreement shall become effective on the date that you commence to access or use the Service or download, access, or use the SDK or Software, and will continue until terminated by you or us. You may terminate this Agreement at any time by ceasing to use the Service and canceling your Account. We may terminate this Agreement at any time, including without limitation in the event that you breach this Agreement (in such an event we will send an email to the email address that you have designated in your Account to provide you with notice of the termination). We reserve the right to stop to provide the Service and/or any Integration Plan or feature, or any part of any of the foregoing, at any time.
- Effect of Termination
- Upon the termination of this Agreement: (i) you may lose access to the Service, SDK, and Software, (ii) you agree to cease to use and to delete all copies of the SDK and Software that are in your possession or control; and (iii) you may lose all access to any data that we may be storing on your behalf. This Section 9, any of your unpaid payment obligations, and Sections 5 (Restrictions), 6 (Fees, to the extent you have unpaid payment obligations), 7 (Responsibility for your App), 10 (Intellectual Property), 12 (Warranty Disclaimer), 13 (Limitation of Liability), 14 (Indemnification), 16 (Data Protection and Data Security) and 19 (Compliance with Laws) to 25 (General), shall survive termination of this Agreement. Please be aware that your App may be affected by the termination of this Agreement and your loss of access to the Service (and SDK).
- You agree that GetSocial is not responsible or liable for any loss of your App, or any loss of potential monetary gain, or loss of time, or loss of resources, or any loss of functionality or features in your App, that may result from the termination of this Agreement or your loss of access to the Service (and SDK).
- Intellectual Property
- Service, SDK, and Software
All of the intellectual property and proprietary rights, title and interest of any nature in and to the Service, SDK and Software, including any updates and upgrades, and any modifications and derivative works (whether or not permitted under this Agreement) of the foregoing, are and shall remain the exclusive property of GetSocial and/or its licensors. No legal or equitable title to, or ownership of, the Service, SDK or Software is transferred to you or any third party.
- Content and Marks
The: (i) text, documents, statistical and analytical reports, articles, blogs, descriptions, graphics, photos, sounds, videos and interactive features on the Service (collectively, the “Content“), and (ii) the trademarks, service marks and logos contained therein (“Marks“), are the property of GetSocial and our affiliates and/or our licensors and may be protected by applicable copyright or other intellectual property laws and treaties. ‘GetSocial’, the GetSocial logo and other marks are Marks of GetSocial or our affiliates. All other trademarks, service marks, and logos used on the Service are the trademarks, service marks, or logos of their respective owners. The Content is provided to you on an ‘as is’ and ‘as available’ basis. The Content is for your informational and personal use only. The Content may not be used, modified, copied, distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled, or otherwise exploited for any other purposes whatsoever without our prior written consent or as expressly permitted herein. If you download or print a copy of any Content you must retain all copyright and other proprietary notices contained therein.
- The App
All of the intellectual property and proprietary rights, title and interest of any nature in and to the App, including any modifications, upgrades, customizations and derivative works (whether or not permitted under this Agreement) of the foregoing, are and shall remain the exclusive property of you and/or your licensors. No legal or equitable title to, or ownership of, the App is transferred to GetSocial or any third party under this Agreement.
- Usage Related Data
We may collect on your behalf data related to the use of your App and GetSocial services by your end users (“Usage Data”). Such Usage Data may include, without limitation, a session ID, a user ID, activity messages, notifications and invite data, user device and operating system info, session length, and other GetSocial service usage data. We use the Usage Data on your behalf to provide our Service. As between you and us, you own all of the Usage Data that we collect or obtain on your behalf.
Please refer to GetSocial’s Privacy Information for Users for information on how GetSocial collects, uses and discloses information.
Except as expressly set forth herein, nothing in this Agreement shall be construed as transferring any rights to you or any third party. GetSocial and our licensors reserve any and all rights not expressly granted in this Agreement.
- Service, SDK, and Software
- Information Description
We attempt to be as accurate as possible. However, we cannot and do not warrant that the Content available on the Service is accurate, complete, reliable, current, or error-free. We reserve the right to make changes in or to the Content, or any part thereof, in our sole judgment, without the requirement of giving any notice prior to or after making such changes to the Content. Your use of the Content, or any part thereof, is made solely at your own risk and responsibility.
- Warranty Disclaimer
The Service is provided on an “as is” and “as available” basis, and without warranties of any kind either express or implied. You assume all responsibility for the selection of the Service to achieve your intended results. GETSOCIAL HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. GETSOCIAL DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. GETSOCIAL DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY CONTENT, INFORMATION, OR RESULTS THAT YOU OBTAIN THROUGH THE SERVICE. YOUR USE OF AND RELIANCE UPON THE SERVICE AND ANY CONTENT IS ENTIRELY AT YOUR SOLE DISCRETION AND RISK, AND GETSOCIAL SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER TO YOU IN CONNECTION WITH ANY OF THE FOREGOING. YOU AGREE THAT WE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS. Applicable law may not allow the exclusion of certain warranties, so to that extent, such exclusions may not apply.
- Limitation of Liability
- TO THE FULLEST EXTENT PERMISSIBLE BY LAW, GETSOCIAL SHALL NOT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY KIND, OR FOR ANY BUSINESS INTERRUPTION, LOSS OF BUSINESS, LOSS OF REPUTATION, LOSS OF DATA, OR LOST PROFITS OR REVENUE, ARISING UNDER OR OUT OF THIS AGREEMENT OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICE, EVEN IF GETSOCIAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitations may not apply to you.
- IN NO EVENT SHALL THE AGGREGATE LIABILITY OF GETSOCIAL FOR ANY DAMAGES ARISING UNDER OR OUT OF THIS AGREEMENT OR IN CONNECTION WITH THE USE OF OR THE INABILITY TO USE THE SERVICE EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU TO US FOR THE SERVICE HEREUNDER DURING THE THREE (3) MONTHS PRIOR TO BRINGING THE CLAIM. The above limitation does not apply in the case of gross intent or negligence.
You agree to defend, indemnify and hold harmless GetSocial and our affiliates and our respective officers, directors, agents, consultants, contractors, interns and employees from any third party claims, damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from: (i) your use of the Service; (ii) your App; and/or (iii) your breach of this Agreement. GetSocial shall provide you with written notice of the claim, permit you to control the defense, settlement, adjustment or compromise of any such claim, and reasonably cooperate with you in the defense and any related settlement action. Without derogating from or excusing your obligations under this section, and notwithstanding any other provision herein, GetSocial reserves the right (at your expense), but is not under any obligation, to assume the exclusive defense and control of any matter which is subject to an indemnification by you. You agree not to settle any matter subject to an indemnification hereunder without first obtaining our express prior written approval.
We reserve the right to access, read, preserve, and disclose any information that we obtain in connection with the Service, and your use thereof, as we reasonably believe is necessary to: (i) satisfy any applicable law, regulation, legal process, subpoena or governmental request, (ii) enforce this Agreement, including to investigate potential violations of them, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of GetSocial, its users or the public.
- Data Protection and Data Security
- Where your use of the Services includes the processing of personal data (as described in the EU Data Protection Directive 95/46/EC and the EU Data Protection Regulation (EU) 2016/679 or GDPR) you shall be the data controller and we act as processor of any personal data processed via the Services, including your Usage Data. You shall ensure that you are entitled to transfer the relevant personal data to us so that we may lawfully process the personal data in accordance with this Agreement and your instructions on your behalf. We will meet our regulatory obligations as a processor of any such personal data, including taking appropriate technical and organizational measures against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, or damage to, such personal data, and the obligation not to process such personal data other than on instruction of you. You acknowledge and accept that personal data may be transferred or stored outside of the EEA or the country where the data-subjects are located in order to carry out the Services and our other obligations under this Agreement.
- You are responsible for providing information to, and obtaining any required informed prior consent from users or subscribers for the processing of such personal data, and the storing of information or gaining access to information stored on terminal equipment (as described in the EU ePrivacy Directive 2002/58/EC and any successor legislation and the EU Data Protection Regulation (EU) 2016/679), also on behalf of us. Such consent may need to include the following information and/or mechanisms: (i) a disclosure on the use of third party technology, where necessary with (secondary) reference to our information available at our website, (ii) a disclosure that cookies or similar technologies are used for data collection, and (iii) a possibility to opt-out. You warrant and undertake that you have provided such information and where necessary obtained such consent.
- You acknowledge and accept that we can use Usage Date to monitor the performance of the Service and pro-actively identify and solve issues, and to generate data not being personal data under the GDPR (General Data Protection Regulation) for our own internal purposes, for example, to generate aggregated services statistics.
- Publicity and Communications
You agree that GetSocial may: (i) display your name and logo, or your Company’s name and logo on whose behalf you are using the Service, SDK or Software, as part of the GetSocial customers list; and (ii) send you messages, about GetSocial’s and/or a third party’s products and services, via email, push notifications and other communication channels, all in accordance with this agreement.
- Compliance with laws
Each party shall comply with all applicable laws relating in any way to its performance of its obligations under this Agreement. You agree to comply fully with all applicable export laws and regulations in any jurisdiction to ensure that neither the SDK or any Software, nor any technical data related thereto, are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by such laws and regulations.
- Government Use
If you are part of an agency, department, or other entity of the United States Government (“Government“), the use, duplication, reproduction, release, modification, disclosure or transfer of the SDK or Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The SDK and Software is a “commercial item”, “commercial computer software” and “commercial computer software documentation”. In accordance with such provisions, any use of the SDK or Software by the Government shall be governed solely by this Agreement.
- Independent Contractors
You and GetSocial are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency, or employment relationship between you and GetSocial. You must not under any circumstances make, or undertake, any warranties, representations, commitments or obligations on behalf of GetSocial.
We reserve the right, at our discretion, to change this Agreement at any time. Such change will be effective ten (10) days following posting of the revised Terms on the Site and informing the customer via email or other means of communication, and your continued use of the Site and/or Service thereafter means that you accept those changes.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you but may be assigned by GetSocial without restriction or notification to you.
- Governing Law and Disputes
- These terms and conditions and the Agreement and any other agreements further thereto shall be exclusively governed by and construed in accordance with the laws of the Netherlands.
- Any applicability of article 7:17 of the Dutch Civil Code is waived.
- Any dispute in connection with these terms and conditions and the Agreement shall be finally settled through arbitration in accordance with the Arbitration Rules of the Netherlands Arbitration Institute (Nederlands Arbitrage Instituut), provided that:
- the arbitral proceedings shall be conducted in the English language;
- the place of arbitration shall be The Hague;
- the arbitral tribunal shall comprise one arbitrator;
- the arbitral tribunal shall decide in accordance with the rules of law, and
- notwithstanding the foregoing, nothing in this Article shall preclude any of the Parties from applying for injunctive relief in summary proceedings (kort geding) before any competent court instead of arbitrators.
This Agreement shall constitute the entire agreement between you and GetSocial concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.