1. SERVICES, REGISTRATION & ACCOUNT
1.1 Services. The Services we offer primarily consist of a subscription-based marketplace in which consumers (“Customers”) can download computer and/or mobile applications (“Developer Content”) from developers (“Developers”).
1.2 Registration. You may be asked to register for an account (an “Account”) on the Site or through the Applications before using the Services. When you register for an Account, you agree to (i) provide accurate, current and complete information about yourself as prompted by our registration form and (ii) maintain and update your information to keep it accurate, current and complete. You acknowledge that if any information provided by you is untrue, inaccurate, not current or incomplete, you will have materially breached these Terms, and we reserve the right to terminate this Agreement and your use of the Services. As part of the registration process, you may be asked to provide a username and password that are unique to the Account (collectively referred to as “Login Information”). You will be responsible for the confidentiality and use of your Login Information and agree not to transfer or resell your use of or access to the Services to any third party. If you have reason to believe that your Account is no longer secure, you must immediately notify us of the problem. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in the Account, and you further acknowledge and agree that all rights in and to the Account are and shall forever be owned by and inure to our benefit. You are entirely responsible for maintaining the confidentiality of your username and password and for any and all activities are conducted through your Account. You may use our Services only if you are at least the age of majority in the jurisdiction in which you reside.
If you open or operate an Account on behalf of an entity, you represent and warrant that you are an authorized representative of such entity and that you have authority to bind such entity to these Terms.
1.3 Our Rights. WE MAY SUSPEND, TERMINATE, MODIFY OR DELETE YOUR ACCOUNT AND/OR TERMINATE OR SUSPEND YOUR ACCESS TO THE SERVICES AT ANY TIME WITH ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE, WITHOUT ANY LIABILITY TO YOU WHATSOEVER. You acknowledge and agree that we are not required to provide you notice before suspending or terminating your Account and/or your access to the Services.
1.4 Your Rights. You have the right to cancel your Account, if applicable, at any time. You understand and agree that, except as expressly provided by law and otherwise herein, the cancellation of your Account and the cessation of your use of the Services is your sole right and remedy with respect to any dispute with us. This includes, but is not limited to, any dispute related to or arising out of (i) this Agreement or our enforcement or application thereof or (ii) your ability to access and/or use the Services.
2. THE MARKETPLACE
2.1 General Information. The Services are comprised largely of a marketplace that permits Developers to offer Developer Content to Customers. Customers purchase subscriptions to the Services to access the Developer Content.
2.2 Trial Period. When you sign up for a Subscription, we may offer you a free trial period as indicated on the Services (“Trial Period”). If we offer you a Trial Period, we still may require that you add a valid payment method to activate the trial. At the end of the Trial Period, your Subscription will automatically renew at the then-current rate unless you cancel the Subscription before the end of the Trial Period through your Account or by contacting us. If your Subscription begins following the Trial Period, but you do not access or use any of the Developer Content following the end of the Trial Period, we will refund the fees charged for the Subscription on your request, provided that you cancel the Subscription within thirty days after the end of the Trial Period. If you use or access any Developer Content following the end of the Trial Period, you must cancel your Subscription in accordance with Section 2.1 above.
2.3 Grace Period. If you have made at least one payment under a Subscription and we cannot renew your Subscription at the end of the applicable subscription period, we will offer a grace period (“Grace Period”) of 14 days. During the Grace Period, you will be able to access your Account and the Developer Content. If we are unable to collect payment for the renewed Subscription at the end of the Grace Period, you will no longer be able to access the Developer Content. Access to your Account will be terminated two weeks following the end of the Grace Period. If you wish to reactivate your Account after access has been terminated, you will be required to pay the past-due Subscription payment in addition to a new Subscription payment for the reactivation.
2.4 Contract between Customer and Developer. You acknowledge and agree that although we are a platform to provide Customers access to Developer Content, we are simply a limited agent of the Developer appointed solely for the purposes of (i) collecting funds from Customers and (ii) delivering any Developer Content downloaded under your Subscription. If there is an issue regarding your receipt of downloaded Developer Content, you may contact us to help resolve the issue; however, you acknowledge and agree that (i) the Services are a marketplace to enable Developers to distribute Developer Content, (ii) the Developer Content is derived from files provided by the relevant Developer, and (iii) such Developer is solely responsible for all Developer Content.
Each item of Developer Content has its own End User Licence Agreement, and you should review the same prior to downloading, or accessing such Developer Content. The relevant Developer is solely responsible for the End User Licence Agreement associated with any such Developer Content.
2.5 Developer Content Availability. We may have a variety of Developer Content available on the Services at any given time, and we may feature certain Developer Content in our promotional or marketing materials. Given the nature of the marketplace, however, we cannot and do not guarantee availability of any particular Developer Content at any time, nor do we guarantee that any Developer Content you download will be available to you perpetually. You may lose access to downloaded Developer Content, and you acknowledge and agree that neither we nor the Developer will provide you with a refund for such Developer Content in the event we are required to deny access to such Digital Content through the Services, except as required by law. Your access to all Developer Content will terminate when your Subscription expires or is terminated.
2.6 Third Party Applications. The Services may be integrated with third party applications, websites, and services (“Third Party Applications”) to make available content, products, and/or services to you. These Third Party Applications may have their own terms and conditions of use and privacy policies and your use of these Third Party Applications will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that we do not endorse and are not responsible or liable for the behavior, features, or content of any Third Party Application or for any transaction you may enter into with the provider of any such Third Party Applications.
3. CUSTOMER CONDUCT
3.1 User Content. The Services are provided for your own use. You are responsible for all of your activity in connection with the Services. The Services may include interactive areas in which you may post public content and information, (in whatever form, referred to herein as “User Content”). You are solely responsible for, the User Content you post to the Services. You are also solely responsible for your use of such interactive features and use them at your own risk. We reserve the right to remove or modify User Content for any reason in our sole discretion. You represent and warrant that no User Content is false, misleading, untruthful, or inaccurate and that the User Content you post does not infringe any patent, trademark, copyright, trade secret, right of publicity, or any other right of any other person or entity.
When you post User Content to the Services, you give us and our affiliates a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content throughout the world in any media. To the extent such content is attached to a user profile on the Services, the foregoing license includes a right to reproduce your profile, and any name, likeness or photograph contained in such profile.
If you submit feedback or suggestions about our Services, we may use your feedback or suggestions without obligation to you.
3.2 Your Conduct. All User Content should be free of violent, threatening, vulgar, discriminatory, harassing, illegal, or sexually objectionable content (“Impermissible Content”). You acknowledge and agree not to post any Impermissible Content, not to use the Services for or to further any illegal activity, and to otherwise comply with any policies related to User Content we may implement from time to time. You also acknowledge and agree that nothing in this paragraph limits our rights under Section 1.3 of these Terms.
4. GENERAL TERMS
4.1 Termination. This Agreement shall continue until you cease using the Services, and close your Account and uninstall our Applications, if applicable, in accordance with our standard procedures or until sooner terminated according to these Terms. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
4.2 Indemnification. You agree to indemnify and hold harmless us, our affiliates and our and their officers, directors, licensors, partners, licensees, consultants, contractors, agents, attorneys, employees, and third party service providers (collectively, the “Indemnitees”) from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees (collectively, “Claim(s)”), that actually or allegedly result from your information, use of the Services, or your breach of this Agreement. You agree to be solely responsible for defending any Claim against or suffered by any Indemnitee, subject to the relevant Indemnitee’s right to participate with counsel of its own choosing, and for payment of damages or losses resulting from all claims against any Indemnitee provided that you will not agree to any settlement that imposes any obligation or liability on any Indemnitee without our prior express written consent.
4.3 Electronic Notices and Disclosures. You agree that we are able to provide you notices electronically to you through your Account or other electronic means all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship. You can receive all the disclosures and notices electronically. By using electronic disclosure, all pertinent delivery fees are waived as charged to you by third parties, including, but not limited to, text rates, bills, and surcharges.
We may give you notices by posting on the Site or by sending them to your Account or to the email address on file for you. It is your responsibility to ensure that your email address and other contact information is updated, current, and correct. All notices to us shall be sent via recognized overnight courier or certified mail, return receipt requested, to Setapp, Ltd., 9 Tallow Street Youghal, Co. Cork, P36YE14, Ireland.
4.4 Warranty Disclaimer. YOU EXPRESSLY AGREE THAT THE SERVICES ARE AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND THAT YOUR USE THEREOF IS AT YOUR OWN RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY (I) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, (III) WARRANTIES RELATING TO DELAYS, INTERRUPTIONS, ERRORS, OR OMISSIONS IN THE SERVICES, OR ANY PART THEREOF, (IV) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE SERVICES, (V) WARRANTIES RELATING TO THE ACCURACY OR CORRECTNESS OF DATA, AND ANY OTHER WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS BY US. FURTHER, AND WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, THERE IS NO WARRANTY THAT THE SERVICES WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT OUR WARRANTY DOES NOT COVER TELECOMMUNICATIONS OR INTERNET OUTAGES CAUSED BY THIRD PARTIES OR OTHERWISE OUTSIDE OF OUR CONTROL. THE SERVICES MAY BE LIMITED BY MANY FACTORS, INCLUDING INHERENT RISKS OF THE INTERNET.
4.5 Limitation Of Liability. IN NO EVENT SHALL WE, OUR DIVISIONS, SUBSIDIARIES AND AFFILIATES OR OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS, AND AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND, OR ANY DAMAGES OR LOSSES WHATSOEVER, WHETHER OR NOT FORESEEABLE OR IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, AND ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH: (I) THE ACCESS, CONSUMPTION OR USE OF OR THE INABILITY TO ACCESS OR USE ANY PART OF THE SERVICES; (II) ANY INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR RECEIVED; (III) ANY SERVICES AVAILABLE THAT ARE DELAYED OR INTERRUPTED; (V) ANY WEBSITE REFERENCED OR LINKED TO FROM THE SERVICES; (IV) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE ANY LINKED SITE; (V) YOUR RELIANCE UPON ANY MATERIAL, PRODUCT, SERVICE OR ANY CONTENT OR OTHER INFORMATION AVAILABLE ON THE SERVICES; OR (VI) THE LOSS OR CORRUPTION OF DATA OR INFORMATION.
TO THE EXTENT PERMITTED BY LAW, OUR TOTAL LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATING IN ANY MANNER TO YOUR USE OF THE SERVICES IS LIMITED TO THE GREATER OF $100 AND THE SUBSCRIPTION FEES COLLECTED PAID BY YOU DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
BECAUSE WE ARE NOT RESPONSIBLE FOR DEVELOPER CONTENT, IF A DISPUTE ARISES BETWEEN A CUSTOMER AND DEVELOPER WITH RESPECT TO DEVELOPER CONTENT (OTHER THAN REGARDING THE DELIVERY OF SUCH DEVELOPER CONTENT), THEN YOU RELEASE US (AND OUR AFFILIATES, AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, THEN YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” YOU, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY RIGHTS YOU MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. YOU ACKNOWLEDGE AND AGREE THAT THIS WAIVER IS AN ESSENTIAL AND MATERIAL TERM OF THIS AGREEMENT, AND THAT WITHOUT SUCH WAIVER, WE WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.
4.6 Intellectual Property. The Services are protected by copyrights, trademarks, patents, trade secrets, and other intellectual property and proprietary rights (collectively, “Intellectual Property Rights”), and any unauthorized use of the same violates these Terms and may violate applicable law. Except as expressly provided herein, we do not grant you any express or implied right to use the Services. You agree not to copy, republish, frame, download, transmit, modify, adapt, create derivative works based on, rent, lease, loan, sell, assign, distribute, display, perform, license, sublicense or reverse engineer any of the Services. In addition, you agree not to take any action that may infringe on our Intellectual Property Rights.
4.7 Governing Law. This Agreement shall be governed by the laws of Ireland without giving effect to conflicts of law principles. Any claim against us arising from the Agreement shall be adjudicated on an individual basis, and shall not be consolidated in any proceeding with any claim or controversy of any other party. Any action relating to this Agreement must be brought in the courts located in Ireland, and you irrevocably consent to the jurisdiction of such courts.
4.8 Miscellaneous. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck, and the remaining provisions shall be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the extent or scope of such section. Our failure to enforce any provision of this Agreement shall not constitute a waiver of that or any other provision. You shall not assign or transfer this Agreement or any right or obligation hereunder to any third party. This Agreement, together with any other documents or agreements referred to herein, sets forth the entire Agreement between you and us.