PLEASE READ CAREFULLY: IF YOU ARE ACCEPTING THIS TERMS OF USE (“AGREEMENT”) ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (“CUSTOMER”), YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. UNLESS THE CUSTOMER HAS ANOTHER VALID AGREEMENT FOR THE PURCHASE AND USE OF GENYMOBILE, INC. (“GENYMOBILE”) PRODUCTS (AS DEFINED BELOW), THIS AGREEMENT GOVERNS YOUR RIGHTS TO THE GENYMOBILE PRODUCTS.
BY CLICKING “ACCEPT” CUSTOMER ACCEPTS THIS AGREEMENT AND THE AGREEMENT WILL BE DEEMED A BINDING CONTRACT BETWEEN GENYMOBILE AND CUSTOMER. IF CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL OF THE SET FORTH IN THIS AGREEMENT OR IF YOU DO NOT HAVE AUTHORITY TO BIND THE CUSTOMER, THEN DO NOT CLICK “ACCEPT” AND CUSTOMER WILL NOT BE AUTHORIZED TO USE THE PRODUCTS.
This Agreement is entered into as of the earlier of the date that Customer accepts the herein or, if earlier, first orders any product (the “Effective Date”).
1. Definitions
“Product” is Genymotion Device Image. “Product” is made available by access to and use of software hosted by the Cloud Provider to which Customer has purchased a license to use under the relevant Order.
“Order” means any purchase order, product schedule or ordering document between Customer and the Cloud Provider that identifies the product licensed or sold and any applicable licensing parameters (e.g., the number of licenses).
“Documentation” is the written and/or electronic release notes, implementation guides, or other published technical documentation about the applicable product. “Documentation” is provided by Genymobile to Customer.
“Downstream customer” is a customer of a Genymobile’s customer.
2. Rights of Access and Use
During the applicable License Term, Genymobile grants to Customer a nonexclusive license. The license permits Customer to access and use the product in accordance with the applicable Documentation, subject to the terms and conditions of this Agreement.
Customer may provide access to the product to Customer’s employees, contractors, customers and affiliates. Customer may provide access to any employees and contractors of such affiliates. Customer is responsible for actions that violate the terms of this Agreement.
The license granted under this Section 2 terminates upon the termination or expiration of this Agreement.
3. Use Restrictions; Customer Obligations
As a condition of the license granted in Section 2, Customer shall not itself and shall not authorize or permit any third party to:
a. reverse engineer, decompile, decode, decrypt, disassemble, or attempt to derive any source code from the product. This restriction applies except and only to the extent any foregoing restriction is prohibited by applicable law.
b. use the Documentation except for supporting Customer’s authorized use of the product.
c. use the product to store or transmit malicious code or infringing, libelous, unlawful or tortious material.
d. disrupt the integrity or performance of any product.
e. employ or authorize a Genymobile Competitor to use or view the product or Documentation. This restriction also applies to providing management, support or similar services with regard to the product without the prior written consent of Genymobile.
Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of any product. Customer shall notify Genymobile promptly of any such unauthorized access or use.
Customer and Customer’s Permitted Users shall at all times abide by Genymobile’s Acceptable Use Policy when using or otherwise accessing the Genymobile product.
4. Payment, Refund and Cancellation
4.a. Payment
Customer shall pay the fees for Genymobile product as set forth in the applicable Order.
4.b. Refunds and Cancellations
Refund eligibility is at Genymobile sole and exclusive discretion. Refund eligibility applies should customers request a refund of any fees after customers have purchased access to Genymotion Device image (Cloud PaaS) from cloud providers for any supported instance type. Refund eligibility applies even if customers have not launched it.
Refund eligibility is at Genymobile sole and exclusive discretion. Refund eligibility applies should customers decide to stop using or cancel after customers launch Genymotion Device image (Cloud PaaS) from cloud providers for any reason other than a technical problem. Refund eligibility applies within the time period for which customers have the right to access the product.
Customers must contact Genymotion technical support first. Customers must contact Genymotion technical support to be eligible for a refund if customers face an issue other than forgetting to stop devices. The technical support contact link is: https://support.genymotion.com/hc/en-us/requests/new?ticket_form_id=360001006577.
Approval applies to refunds. Approval applies as well as full or partial refund at Genymobile sole and exclusive discretion.
5. Confidentiality
5.a. Definition
“Confidential Information” is non-public information provided by one party (“Discloser”) to the other (“Recipient”). Confidential Information is designated as confidential or reasonably should be considered as such.
Confidential Information excludes information that:
(i) is or becomes public through no fault of the Recipient.
(ii) was known to Recipient before the disclosure.
(iii) is disclosed to Recipient by a third party without violation of any confidentiality restrictions.
(iv) is independently developed by the Recipient without access to or use of the Discloser’s information.
Genymobile Confidential Information includes but is not limited to all products (and any derivatives, performance data, benchmark results, security assessments, product roadmaps and any other technical information relating to the products), Documentation and its derivatives, and Genymobile’s pricing.
The terms and conditions of this Agreement are the Confidential Information of both parties.
5.b. Non-disclosure and Non-Use
The Recipient shall only use the Confidential Information of the Discloser to exercise rights and/or to perform under this Agreement.
The Recipient shall use the same degree of care to prevent unauthorized use and disclosure of Discloser’s Confidential Information as the Recipient uses for its own confidential information. The Recipient shall use no less than reasonable care.
The Recipient shall limit access to the Discloser’s Confidential Information for employees, contractors, or agents. Access is limited only to those employees, contractors, or agents who have a need to access such Confidential Information. Those individuals must be subject to confidentiality obligations at least as restrictive as those specified in this Section 5.
The Recipient may disclose the Discloser’s Confidential Information to the extent required by any court, governmental body, or law or regulation. If disclosure is legally permissible, Recipient shall provide prompt written notice to the Discloser of such disclosure.
Upon written request of the Discloser, Recipient shall return or destroy the Discloser’s Confidential Information. Return or destruction applies at Discloser’s option.
6. Ownership
This is a subscription agreement for use of Genymobile product. This section is not an agreement for sale.
Customer acknowledges that Customer obtains only a limited right to the Genymobile product. Customer acknowledges that, irrespective of the words “purchase”, “sale” or like terms, no ownership rights are conveyed to Customer under this Agreement.
Genymobile and its suppliers own and retain all right, title, and (except as expressly licensed in this Agreement) interest in and to the product.
Customer is not obligated to provide Genymobile with any suggestions or feedback about the products or services (“Feedback”).
To the extent Customer provides Feedback to Genymobile, Customer assigns ownership of such Feedback to Genymobile. Genymobile may use and modify such Feedback without any obligation, restriction or payment.
Customer acknowledges that the Genymobile product is offered as an on-line solution. Customer acknowledges that Customer has no right to obtain a copy of the Genymobile product itself.
7. Indemnity
7.a. Indemnification by Genymobile
Genymobile shall at its cost and expense:
(i) defend or settle any claim brought against Customer and Customer’s directors, officers and employees (“Customer Indemnitee(s)”). The claim alleges that Customer’s use of the product infringes or violates a third party’s intellectual property right(s).
(ii) pay, indemnify and hold Customer Indemnitees harmless from any settlement of such claim. Genymobile also indemnifies Customer Indemnitees against any damages finally awarded to such third party by a court of competent jurisdiction as a result of such claim.
7.b. Indemnification for Genymobile
If a customer builds the customer’s product leveraging the Genymobile product (Genymotion Cloud) for further use by downstream customer, the customer shall at its cost and expense:
(i) defend or settle any claim brought against Genymobile and Genymobile’s directors, officers and employees (“Genymobile Indemnitee(s)”). The claim alleges that downstream customer’s use of the customer’s product infringes or violates a third party’s intellectual property right(s).
(ii) pay, indemnify and hold Genymobile Indemnitees harmless from any settlement of such claim. The customer also indemnifies Genymobile Indemnitees against any damages finally awarded to such third party by a court of competent jurisdiction as a result of such claim.
7.c. Remedies
If a claim under Section 7.a occurs or in Genymobile’s opinion is reasonably likely to occur, Genymobile may at its expense and sole discretion:
(i) procure the right to allow Customer to continue using the applicable product.
(ii) modify or replace the applicable product to become non-infringing.
(iii) if neither (i) nor (ii) is commercially practicable, terminate Customer’s license to the affected portion of applicable product. Genymobile refunds a portion of the pre-paid, unused license fees paid by Customer corresponding to such product.
7.d. Exclusions
Genymobile has no obligations under Section 7.a if the claim is based upon or arises out of:
(i) any modification to the applicable product not made by or at the direction of Genymobile.
(ii) any combination or use of the applicable product with any third party products or systems. The exclusion applies to the extent the claim is based on such combination or use.
(iii) Customer’s continued use of the allegedly infringing technology after being notified of the infringement claim.
(iv) Customer’s failure to use Updates made available by Genymobile.
(v) Customer’s failure to use the product in accordance with the applicable Documentation.
(vi) use of the product outside the scope of the license granted under this Agreement.
Section 7.a constitutes Customer’s sole and exclusive remedies. Section 7.a also provides Genymobile’s entire liability with respect to infringement of third party intellectual property rights.
7.e. Indemnification by Customer
Customer shall at its cost and expense:
(i) defend or settle any claim brought against Genymobile and Genymobile’s directors, officers and employees (“Genymobile Indemnitee(s)”). The claim alleges that Customer Data infringes or violates a third party’s intellectual property or privacy right(s).
(ii) pay, indemnify and hold Genymobile Indemnitees harmless from any settlement of such claim. Customer also indemnifies Genymobile Indemnitees against any damages finally awarded to such third party by a court of competent jurisdiction as a result of such claim.
“Customer Data” is any data originated by Customer or Customer Representatives. Customer Data includes data that Customer or Customer Representatives submit to the product.
7.f. Procedures
Each indemnitor’s indemnification obligation is conditioned on the indemnitee:
(i) giving the indemnitor prompt written notice of such claim.
(ii) permitting the indemnitor to solely control and direct the defense or settlement of such claim. The indemnitor shall not settle any claim in a manner that requires the indemnitee to admit liability or pay money without the indemnitee’s prior written consent.
(iii) providing the indemnitor all reasonable assistance in connection with the defense or settlement of such claim. The indemnitee provides assistance at the indemnitor’s cost and expense.
8. Support and Maintenance Services
Support and maintenance services are provided in accordance with the support and maintenance specified in support policy.
9. Warranties
9.a. Product
Genymobile represents and warrants to Customer that the product materially conforms to the specifications specified in the relevant Documentation.
Customer must notify Genymobile of any warranty deficiencies within thirty (30) days from the provision of the deficient product.
Customer’s sole and exclusive remedy and the entire liability of Genymobile for Genymobile’s breach of this warranty are for Genymobile, at its option, to:
(i) repair such product (and/or deliver new applicable Software).
(ii) terminate the applicable License Term and refund any prepaid, unused subscription fees paid to Genymobile for the unused period of any such terminated License Term.
9.b. Professional Services
Customer may order professional services from Genymobile. Professional services are subject to the terms and conditions of this Agreement and a mutually agreed-upon statement of work (if any).
For ninety (90) days following the date of delivery of any professional service by Genymobile to Customer, Genymobile represents and warrants that such professional services shall be professional, workman-like and performed in a manner conforming to generally accepted industry standards and practices for similar services.
Customer’s sole and exclusive remedy and the entire liability of Genymobile for Genymobile’s breach of this warranty are for Genymobile, at its option, to re-perform the non-conforming services. Genymobile may also refund the fees paid for such non-conforming professional services.
9.c. Exclusions
The express warranties do not apply if the applicable product:
(i) has been modified, except by or at the direction of Genymobile.
(ii) has not been used, or maintained in accordance with this Agreement and Documentation.
(iii) has been subjected to abnormal stress, misuse, negligence or accident.
(iv) is used with any other software or products not specified in the Documentation.
Additionally, these warranties apply only if notice of a warranty claim is provided within the applicable warranty period.
9.d. Disclaimer
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS SECTION 9, THE PRODUCT AND SERVICES ARE PROVIDED “AS IS,” AND GENYMOBILE PROVIDES NO OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE.
GENYMOBILE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
10. Term and Termination
The access rights granted herein with respect to the product remain effective until the License Term for the relevant product expires.
11. Limitation of Liabilities
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR ANY BREACHES OF OR FOR LIABILITY ARISING OUT OF SECTION 3 (RESTRICTIONS), 5 (CONFIDENTIALITY) OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) FOR:
(a) ANY LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE.
(b) AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAYABLE TO Genymobile FOR THE RELEVANT PRODUCT OR SERVICE DURING THE TWELVE-MONTH PERIOD BEFORE THE EVENT GIVING RISE TO SUCH LIABILITY.
THESE LIMITATIONS APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT.
MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION 11.
12. General
12.a. Export/Import
The product and Documentation may be subject to U.S. and foreign import and export control laws and regulations.
Customer agrees to comply with all such regulations applicable to Customer, including obtaining applicable import licenses.
12.b. U.S. Government End Users
The product and Documentation are “commercial items,” as that term is defined in 48 C.F.R. 2.101. The product and Documentation consist of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212.
Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.729204, the product and Documentation are being licensed to U.S. Government end users only as “commercial items.” The product and Documentation are licensed with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
12.c. In-Licensed Materials and Open Source
The product may contain or may interoperate with software services or other technology that is not owned by Genymobile.
The technology described as “In-Licensed Materials” is licensed to Genymobile by a third party or is available under open source or free software licenses (“In-Licensed Materials”).
The In-Licensed Materials may be subject to additional terms and conditions made available as required to Customer.
To the extent Genymobile uses open source software in its product, the applicable licenses shall not restrict the license rights granted to Customer under this Agreement.
The applicable licenses shall not impose further obligations or restrictions upon Customer, provided Customer uses the product in accordance with this Agreement.
12.d. Governing Law and Jurisdiction
Except as otherwise provided in Schedule A (if applicable), this Agreement and the rights and duties of the parties arising from this Agreement are governed by, construed, and enforced in accordance with the laws of the State of California. The conflicts-of-law principles are excluded.
The sole and exclusive jurisdiction and venue for actions arising under this Agreement are state and federal courts in LOCATION.
The parties agree to service of process in accordance with the rules of such courts.
The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods do not apply.
12.e. Assignment
Neither party may assign this Agreement without prior written consent of the other party.
Either party may assign this Agreement to a successor-in-interest of substantially all of its business and/or assets.
Any assignment in violation of this Section 12.e is void.
Subject to the foregoing, all rights and obligations of the parties under this Agreement are binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.
12.f. Data Communications
Genymobile may or may not collect, access, use, store, safeguard, disclose and transfer (“Process”) Personal Information for the purposes of this Agreement.
The purposes include implementing and delivering the product and its features and associated services, providing Customer support, and helping Customer prevent or address service or technical problems.
The purposes also include processing as otherwise expressly permitted by Customer in writing.
The purposes also include processing as compelled by law.
Customer shall make such disclosures, obtain such consents, and provide such access, choices and other applicable rights to individual users with regard to the Processing of Personal Information as are required under applicable law, rules or regulations.
“Personal Information” is any information relating to an identified or identifiable individual user that is obtained by or communicated to Genymobile by Customer in performance by Genymobile of its obligations under this Agreement.
Genymobile may or may not collect, analyze, and use aggregated, de-identified technical data and related information. The aggregated, de-identified technical data and related information includes product or feature usage, device metrics/metadata and/or mobile application usage.
Genymobile may use aggregated, de-identified technical data and related information to facilitate market research, product development/improvement and to provide support and maintenance services.
Genymobile may or may not use, store, or disclose such information or material derived from such information. Such use, storage, or disclosure applies as long as such information does not identify or is not attributable to any individual.
12.g. Equitable Relief
The parties agree that a material breach of this Agreement adversely affecting Genymobile’s or its suppliers’ intellectual property rights in the product or either party’s Confidential Information may cause irreparable injury.
The parties agree that monetary damages would be an inadequate remedy for such irreparable injury.
The non-breaching party is entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have under this Agreement or at law.
12.h. Publicity
Genymobile may publicly disclose that Customer is a customer of Genymobile and a licensee of the product.
Public disclosure includes inclusion in a list of Genymobile customers and other promotional materials.
12.i. Independent Contractor
The parties are independent contractors.
This Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.
12.j. Waiver & Severability; Amendments
The failure of either party to enforce any provision of this Agreement does not constitute a waiver of any other provision or any subsequent breach.
If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision is enforced to the maximum extent permissible to effect the intent of the parties.
The remaining provisions of this Agreement remain in full force and effect.
This Agreement may only be amended, or any term or condition set forth herein waived, by written consent of both parties.
12.k. Notices
Except as otherwise provided in this Agreement, all legal notices to Customer are given in writing to any Customer address listed on the applicable Order.
All legal notices to Genymobile are given in writing to: Genymobile, Inc., 541 Jefferson Avenue, Suite 100, Redwood City, CA 94063 U.S.A., Attention: General Counsel.
Such notices are effective:
(a) when personally delivered.
(b) on the reported delivery date if sent by a recognized international or overnight courier.
(c) five business days after being sent by registered or certified mail (or ten days for international mail).
For clarity, purchase orders, invoices, and other documents relating to order processing and payment are not legal notices.
Purchase orders, invoices, and other documents relating to order processing and payment may be delivered electronically in accordance with Genymobile and Customer’s standard ordering procedures.
12.l. Entire Agreement
This Agreement consists of these terms and conditions, and the attached schedule(s), which are incorporated by reference.
This Agreement constitutes the entire agreement between the parties with respect to its subject matter.
This Agreement supersedes and cancels all prior agreements, representations, communications, and understandings of the parties, written or oral, relating to such subject matter.
This Agreement is not intended to confer upon any person other than the signatories below any rights or remedies.
This Agreement prevails over any conflicting, or additional terms of any ordering document, acknowledgment, confirmation or other document issued by Customer before or after the execution of this Agreement unless such conflicting or additional terms have been introduced via an amendment and accepted in writing by both parties.
The headings of sections of this Agreement are for convenience and are not for use in interpreting this Agreement.