Terms of Service for SDK
This Terms of Service Agreement (the “SDK Service Agreement”), is an agreement between you (“You” or the “User”), and Edugamitec S.á r.l., a company registered in Luxembourg under the company number B229297 and having its registered office at 6A avenue des Hauts-Fourneaux, L4362, Esch-sur-Alzette ("Edugamitec", "We", or "Us"). As part of our commercial services we offer a SDK (the “Service”). In order to use this Service, You must use our Software Development Kit (“SDK”) to integrate our software application (the “Software”) into Your own application(s)(“App(s)”), subject to the conditions set out herein. In case of any discrepancies between the terms and conditions for the use of the Service set out herein with the Terms of Service You have accepted already when creating an Account on Our Website (www.memomoti.com), the terms and conditions for the use of the Service set out below shall prevail.
Last update: 2 August 2020
1) Service and Your Use of Our Services
1.1) Following Your registration to the Service as per Section 1.2, You may (i) use the latest version of our SDK for the sole purpose of integrating our Software into Your App or into Your own SDK to provide it to publishers of third-party Apps, and (ii) to distribute the integrated Software together with Your App or SDK. You understand that We may require You to use/update the then-current version of our SDK in order to use the Service.
1.2) To use our Service, You must complete the registration process for the Service on our Website.
You may then download the SDK via our Website or other third party platforms we use to distribute our SDK.
1.3) Unless explicitly agreed or permitted in Section 1.1. or permitted by mandatory applicable law, You shall not, and You agree not to: modify, decompile, reverse engineer, reverse assemble, decipher or otherwise attempt to discover any programming code or any source code used in or with our SDK, rent, lease, loan, sell or publicly display our SDK, or offer services similar to our Services by using our Service, or enable third parties to access and use our Services.
1.4) Unless explicitly agreed or permitted in Section 1.1. or permitted by mandatory applicable law, You shall not, and You agree not to: modify, decompile, reverse engineer, reverse assemble, decipher or otherwise attempt to discover any programming code or any source code used in or with our SDK, rent, lease, loan, sell or publicly display our SDK, or offer services similar to our Services by using our Service, or enable third parties to access and use our Services.
1.5) You are aware that end users have to opt-in to the use of our Services, and you are aware that this or other measures required by local laws have to be implemented in or provided with Your App which will prevent us from collecting User Information.
1.7) We may modify, replace, or discontinue the Services, partially or entirely, at any time and in our sole discretion. All of these changes shall be effective upon their posting on Our Website or by direct communication to you unless otherwise noted.
2) Term and Termination
2.1) This agreement is valid until either (i) you integrate Our Services in your App(s), (ii) You decided to disable the use of Our Services via Our Website, or (iii) We decided to disable the use of Our Services withing Your App(s).
2.2) The right of either party to terminate for cause remains unaffected. Such right shall apply, in particular:
(i) For You if Edugamitec fails to meet the availability set out in Section 3 below, or if a material defect of the Service impair the agreed use of the Service and such defect is not remedied within five (5) business days, or if Edugamitec discontinues or materially modifies the Services to the disadvantage of the User;
(ii) For Edugamitec if You are in breach of one or more of its obligations.
3.1) Edugamitec will use reasonable efforts to make the Services available for at least 99% in the average of a calendar quarter. This means that the Services shall be available during 99% of a calendar quarter (including day- and night time, Sundays and bank holidays). Temporary downtimes for maintenance reasons, downtimes due to force majeure or reasons beyond Edugamitec’s control, in particular downtimes due to power failure, shall not be taken into consideration when calculating non-availability.
3.2) Edugamitec will inform Users about the kind, extent and duration of the discontinuation or restriction of the Service as well as about any scheduled downtime via the Website. The notification requirement regarding the beginning of the discontinuation does not arise if the advance notification (i) is objectively not possible under the circumstances involved or (ii) would delay the removal of interruptions already occurred. In case of a discontinuation or restriction of Service, Edugamitec will use all commercially reasonable efforts to resume or restore the Service as soon as possible.
4) Data Protection, Opt-In
4.1) You are aware that Edugamitec does not warrant that the use of the Service is compliant to the requirements of local privacy laws of Your jurisdictions or jurisdictions You choose to distribute the Software and collection of End User Information in, and you agree to comply with any such requirements by implementing the necessary measures in your App. As a minimum, You agree:
(i) to implement an opt-in option before the collection of End User Information via our Service, for instance by integrating the possibility of an opt-in for the data collection in the starting screen of your App and by providing an opt-out link in the Settings of your App, and
(iii) to obtain all end user consents, clearance and authorizations required by applicable law to use the Service.
4.2) Our SDK supports an opt-in process before collecting the relevant User Information from the end user’s device. Edugamitec does not warrant that the provision of an opt-in option as supported by the SDK is sufficient to comply with the requirements of Your local laws, and you shall safeguard that all measures are taken by You that the User Information collected via Your App in the jurisdictions where You distribute your App in has been collected and can be processed by Edugamitec for the purposes of providing the Services to You in full compliance with such laws.
4.3) You will not (and will not allow any third party to:
4.4) You agree that We have the right to use, distribute and publish for our business purposes the End User Information collected by Us in connection with Your use of the Service.
5) No Warranty, Limitation of Liability, Indemnification
5.1) THE SDK, SOFTWARE, SERVICES AND MATERIALS ARE PROVIDED “AS IS,” AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, EDUGAMITEC DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
5.2) In case the Service (including the SDK and Software) shows a material defect, Edugamitec will use reasonable efforts to remedy such defect within a reasonable term following the receipt of your written notice. In case Edugamitec fails to rectify the defect within the said term, Your sole right and remedy is to terminate this Agreement as per the above.
5.3) Any liability of Edugamitec for damages of User, irrespective if based on contract, tort or otherwise, require default, i.e. willful misconduct or gross negligence. Any exceeding liability, i.e. any liability resulting from slight negligence of not requiring any default on Edugamitec!s side shall be excluded, except for cases where Edugamitec is in breach of an express guarantee (i.e. made by Edugamitec using the term “guarantee”), cases of strict product liability or other cases where such liability is mandatory at law.
5.4) Edugamtiec’s overall liability shall be, to the maximum extent permitted by applicable law, limited for all damages occurring during a contract term to the amount paid by User for the said term.
5.5) You warrant that You have obtained any and all consents, authorizations and clearances from end users to allow Us to collect, store, and use User Information as per the terms of this Agreement. You agree to indemnify, defend and hold harmless Edugamitec, its subsidiaries, affiliates, or any of their respective directors, officers, employees and agents from and against any and all claims, liabilities, penalties, settlements, judgments, fees and expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) arising from (i) Your violation of the terms of this Agreement; (ii) any violation of a third party’s intellectual property rights resulting from the integration or use of the SDK together with your App or SDK; and (iii) any violation or failure by You to comply with all laws and regulations in connection with Your use of the Service, whether or not described herein.
6) No Illegal, Harmful, or Offensive Use or Content You may not use, or encourage, promote, facilitate or instruct others to use, the Services or AWS Site for any illegal, harmful, fraudulent, infringing or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, fraudulent, infringing or offensive. Prohibited activities or content include:(i) llegal, Harmful or Fraudulent Activities. Any activities that are illegal, that violate the rights of others, or that may be harmful to others, our operations or reputation, including disseminating, promoting or facilitating child pornography, offering or disseminating fraudulent goods, services, schemes, or promotions, make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming.
(ii) Infringing Content. Content that infringes or misappropriates the intellectual property or proprietary rights of others.
(iii) Offensive Content. Content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable, including content that constitutes child pornography, relates to bestiality, or depicts non-consensual sex acts.
(iv) Harmful Content. Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.
7. Confidentiality, Use of Your Company Name, Logos and Trade Marks as Customer Reference
7.1) You agree that You shall keep all other data disclosed or made accessible (no matter in which form though the Services) and any access or login data, software, technical know-how, functionalities of the Service or other confidential information (hereinafter: “Information”) confidential and only use such Information for the intended purpose.
7.2) The provisions set forth in Section 7.1 above shall not apply in case and to the extent that such Information (i) is or becomes available without restriction to the general public by acts not attributable to Users, (ii) was rightfully in User’s possession without limitation on disclosure before disclosure hereunder to the User, (iii) is rightfully disclosed to user by a third party without restrictions on disclosure, (iv) was verifiably independently developed by User, (v) has to be made accessible to public authorities by law or (vi) is allowed to be made accessible by Us.
7.3) You agree that we may use your company name, logos and trade marks in our marketing materials and on Our Website for the sole purpose of referring to You as Our customer.
8) Applicable Law, Jurisdiction
The formation, interpretation and performance of this Agreement and any disputes arising out of it shall be governed by the substantive and procedural laws of the Grand Duchy of Luxembourg, without regard to its rules on conflicts of law. The exclusive jurisdiction and venue for action related to this Agreement shall be the courts located in Grand Duchy of Luxembourg, and you hereby submit to the personal jurisdiction of such courts. Notwithstanding the forgoing, Edugamitec may also assert claims at the court at the seat of User. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
9) Changes to This Agreement
We may edit this agreement from time to time. Please check this agreement regularly for any changes. We will post all changes here, and if we make any substantial changes we may also notify you by email.
10.1) If any portion of this Agreement is found to be unenforceable, the remaining portion will remain in full force and effect.
10.2) If Edugamitec fails to enforce any of this Agreement, it will not be considered a waiver.
10.3) Any amendment to or waiver of this Agreement must be made in writing and signed by Us.
10.4) All of our rights and obligations under this Agreement are freely assignable by Edugamitec in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.