Engage Marketing Ltd, t/a MyApp.ie and Salon Solutions
Terms and Conditions of Business
For the purpose of these Terms & Conditions the following Definitions apply:-
“Company”, “we”, “our” or “us’ refers to Engage Marketing Ltd trading as MyApp.ie and Salon Solutions whose place of business is at 38, Deepdales, Southern Cross Road, Bray in the County of Wicklow . We specialise in affordable online shops, websites and mobile app solutions to make it easier for salons and small businesses to sell online.
“Customer” or “you” refers to the company, firm, body, organisation, partnership or individual contracting with Engage Marketing Ltd trading as MyApp.ie and Salon Solutions to undertake service(s) on its/their behalf.
“Contract” means the contract for the supply of Services to the Customer by the Company governed by the Terms and Conditions as set out hereunder.
“Confidential information” means information (in any format),which is confidential, either to you or to us and which either you disclose to us or we disclose to you in connection with the Services.
“Content” means data, information, text, photos, audio or video, graphics, web pages, links, software & code, musical works, images, files created by or provided by the Customer through its use of the Online Shops/MobileApps/Website.
“Initial Period” means a 12-month subscription period beginning on the Subscription Commencement Date.
“Order” means a confirmed request by the Customer for our Services made via email, our website or online form.
“Services” includes, but is not limited to, designing & developing Online Shops/Mobile App/Websites for our Customer’s online presence and providing a rolling subscription plan which includes providing:
e-commerce / Online Shops
Progressive Web App (basic)
Progressive Web App (advanced)
Websites (no e-commerce)
“Subscription” means your payment of the applicable subscription fee to the Company in exchange for the relevant Services which subscription is fora minimum initial period of 12 months from the Subscription Commencement Date& thereafter automatically becomes a rolling monthly subscription.
“Subscription Commencement Date” means the date upon which the Online Shop/Mobile App/Website goes live.
“Subsequent Period” means the rolling monthly subscription period which automatically commences on the expiry of the Initial Period unless either theCompany or the Customer cancels the automatic subsequent period at least 14days before the Initial Period ends.
“Terms and Conditions” means the standard terms and conditions of sale set out in this document and (unless the context requires otherwise)includes any special terms and conditions agreed in writing between the Company and the Customer.
“Work materials” means any information communicated or transmitted to us by you in order to perform the Services provided herein.
1.1 These conditions apply to your use of theServices. Any breach by you of theseTerms & Conditions shall entitle us to terminate or suspend your right to use the Services.
1.2 We reserve the right to change or alter these Terms &Conditions with or without notice to the Customer at any time and such changes will, unless otherwise stated, take immediate effect.
1.3 The headings in these Terms & Conditions are for convenience only and shall not affect their interpretation.
1.4 Where the context dictates in these Terms & Conditions, the singular shall include the plural and vice versa and any gender includes the other gender.
1.5 Any reference to a Clause shall mean a clause of these Terms & Conditions.
2. APPLICABILITY OF CONDITIONS
These conditions shall form part of all Contracts between theCompany and the Customer and shall prevail over any inconsistent terms and conditions contained in or referred to in any order or correspondence of theCustomer in writing which is accepted by the Company or elsewhere and all or any such conditions or stipulations contrary to these Conditions are hereby excluded and extinguished. No variation of these Conditions shall be binding unless accepted by the Company in writing.
3. ERRORS AND OMISSIONS
Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability of the Company.
4. QUOTATIONS AND OFFERS
Quotations for Services by the Company will not constitute offers to the Customer and will not be binding on us. An offer will be constituted by way of an order in writing from theCustomer based on details of the particular services you require from us and aContract will be formed by our acceptance of your order. Each order from the Customer will constitute the basis of a separate Contract but the application of these Conditions to aContract shall constitute notice to the Customer of their applicability to all future orders, which are accepted.
5. OBLIGATIONS OF THE CUSTOMER
In relation to the provision of some of the Services it is important that the Customer provide the Company with accurate & complete WorkMaterials and Content as requested by the Company to ensure that we can design, build & complete the Online Shop/Mobile App/Website for publishing. In this regard, the Customer agrees to:-
5.1 Provide the Company with accurate & complete registration information & accepts full responsibility for updating the Company on any changes to that information(to include contact email address) by emailing the Company on firstname.lastname@example.org or by contacting your customer service representative directly.
5.2 Name a contact person within the Customer’s organisation to support communication with us;
5.3 No later than 21 days of being requested by the Company, you will provide any logos, profiles, pictures or other information and any proof of accreditations, registrations and/or authorisations required by us.
5.4 Provide any other materials which will assist us in best delivering our service. The Customer shall have sole responsibility for ensuring the accuracy of all information provided to the Company and warrants and undertakes to theCompany that the Customer’s employee(s) assisting in the provision of the materials have the necessary skills and authority.
5.5 TheCustomer will be obliged as quickly as possible and within the agreed deadline to comment on and/or approve materials provided as part of the Services. The Customer accepts that failure by the Customer in this regard will result in the Company suspending all further work on the provision of theServices until such time as the information requested is provided by the Company. Furthermore, the Customer accepts that the Company will provide agreed amendments but cannot facilitate multiple amendments & alterations to the materials which have been prepared by the Company on foot of the Services ordered. The Customer accepts that in such circumstances the Company shall be entitled to invoice the Customer for all additional services provided.
5.6 In the event that the Customer fails to undertake those acts or provide those materials required under this clause within any agreed deadline the Company shall be entitled to invoice for theServices that it has supplied and the remaining Services as ordered whether or not the Company has been able to deliver them.
5.7 In relation to the information provided to the Company to be placed on the OnlineShop/Mobile App/Website, the Customer confirms & accepts exclusive responsibility that the information is:-
5.7.1 honest, accurate & truthful & represents the prices, standards & specifications of the services/products/goods being offered by the Customer;
5.7.2 in compliance with the relevant advertising standards &applicable laws of the jurisdiction within which the Customer operates/conducts business;
5.7.3 not defamatory of any person, company or organisation;
5.7.4 is not deliberately misleading.
5.8 TheCustomer shall obtain the necessary consents (where required under data protection law) of individual people to the use of their images prior to furnishing those images & videos to us and you acknowledge that the Company is not a Data Controller within the meaning of the Data Protection Act, 2018 in this regard. Furthermore, the Customer shall ensure that all necessary rights, licences and consents required from third parties are obtained prior to furnishing the Company with anyContent or Work Materials or other information to be placed on your MobileApp/Website. The Customer shall indemnify and keep the Company indemnified fully against all liabilities, costs and expenses whatsoever and howsoever incurred by the Company in respect of any third parties as a result of the provision of the Services which result in claims or proceedings against the Company for infringement of any Intellectual Property Rights or other proprietary rights of third parties, or for breach of confidentiality or contract or for defamation.
5.9 The Customer undertakes to comply with all applicable rules, regulations, codes of practice and laws relating to its use of the Services, including without limitation its obligations under the DataProtection Act 2018 and the GDPR and hereby agrees to indemnify and to keep theCompany indemnified in respect of any and all costs, claims or proceedings whatsoever brought against the Company by any third party in connection with any breach of the same by the Customer. The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described in the present clause.
5.10 The Customer shall not move the hosting of their Online Shop/MobileApp/Website to another supplier, due to the bespoke platforms.
5.11 The Customer shall report to the Company any suspected faults in or infiltration of the Online Shop/Mobile App/Website of which you may become aware as soon as such suspected faults or infiltration come to your attention. If the Company reasonably believes that yourID is being used in any way which is not permitted under these Terms &Conditions, the Company reserves the right to suspend access rights immediately on giving notice to you & to block access from your ID until the issue has been resolved.
5.12 Each registration is for a single user only. On registration, you will be allocated a username & password (“ID’). You are responsible for all use of the Service using your ID & you are responsible for preventing unauthorised use of your ID.
5.13 The Customer shall keep confidential & take all necessary steps to ensure the continued confidentiality of its account identification details, password, security encryption devices & other confidential information relating to the Online Shop/Mobile App/Website and notify theCompany immediately in the event of a third party obtaining unauthorised access to its password or using your account identification details.
6. OBLIGATIONS OF THE COMPANY
6.1 The Company warrants that it will provide the Services as ordered by the Customer using reasonable care & skill to conform in all material respects with the specified order & to ensure its availability to you during your Subscription.
6.2 The Company will use all reasonable endeavours to meet the deadline dates as agreed with the Customer, but any such dates will be estimates only & time shall not be of the essence for the provision of the Services. The Company shall not be liable for any delay in delivery arising due to circumstances beyond its control as set out inClause 9 herein or caused by the failure of the Customer to provide the Company with adequate delivery instructions or any other instructions relevant to the supply of the Services or non-compliance of the Customer with its obligations under Clause 5 herein.
6.3 The Company shall have the right to make any changes to the Services which are necessary in order to comply with any applicable law.
6.4 The Company shall be entitled to use subcontractors or other third party services for the provision of the Services provided always that the Company shall remain liable to the Customer for the performance of the Services as if it had carried them out itself.
6.5 The Company is continually seeking to improve the Service. The Company reserves the right, at its discretion, to make changes to any part of the Service, provided that it does not materially reduce the content or functionality of the Online Shop/MobileApp/Website.
6.6 The Company may at any time:
6.6.1 Suspend the availability of the Online Shop/Mobile App/Website (or any part of it) for the purpose of repair, maintenance or improvement or to preserve security;
6.6.2 Remove or amend any or all of the information provided by you from the Online Shop/MobileApp/Website which in the Company’s reasonable opinion is unlawful or has been placed in breach of the Contract.
6.7 The Company retains the exclusive right in its sole discretion to:
6.7.1 determine which features, services, products, software or other tools will be available for the Customer’s use via the Company platforms; and
6.7.2 add, change or remove any Content, materials and/or functionality made available in any Online Shop/Mobile App/Website or in the Company platforms at any time, with or without reason. For example, the Company may change the settings and/or appearance of any part of the Company platforms or any elements thereof which may be provided in a OnlineShop/Mobile App/Website or otherwise, without prior notice or the Company may provide any Updates, new versions, new releases and upgrades to the Company platforms or any other elements thereof. Notwithstanding the foregoing, the Company will do its best to ensure the Customer’s Work Materials and/or Content will not be modified, but rather only the format of the Work Materials and/or Content as provided in an Online Shop/MobileApp/Website will be changed as a result of the technical removal or addition of a functionality or element of the Company platforms.
6.8 The Company retains the exclusive right to determine, implement, provide or make available from time to time any Monetisation Tool(s) as requested by the Customer which will be charged at an additional fee. The Customer will not: (i) modify, remove or interfere with the Monetisation Tools ; (ii) provide, make available or link to services, functionality or features that compete with or are similar to or are substitutes for, the Monetisation Tools; or (iii) permit, authorise or encourage a third party to engage in any of the activities set forth in clauses(i) or (ii).
7.1 FEE:- there are separate fee structures for theCompany’s Services.
7.1.1. The fee for the build & development of the Online Shop/Mobile App/Website shall be payable by the Customer to theCompany pursuant to the fee structure set out in our written communication to you arising from which you place an order for services with the Company &in respect of which we confirm in writing our acceptance of the Customer’s order as per Clause 4 above;
7.1.2. The Subscription Fee for the Initial Period which falls due on the Subscription Commencement Date; and
7.1.3. The Subscription Fee for the SubsequentPeriod which is a rolling subscription fee invoiced monthly to the Customer.
7.2 The price of the Services shall, at all times, be in accordance with the fee structure quoted by us in the written correspondence as per Clause 4. In those circumstances we reserve the right to amend our initial quotation in circumstances where significant additional work will be required by us which was not clear from the initial instruction received from the Customer.
7.3 The Company reserves the right at anytime & from time to time to modify and amend its pricing. The Company reserves the right to discontinue, temporarily or permanently the Services (or part thereof) with or without notice. The Company shall not be liable to you or to any third party for any modification, price change, suspension or discontinuation of the Services.
7.4 All prices expressed are exclusive of any VAT payable unless otherwise stated.
7.5 METHOD OF PAYMENT:- All payments due shall be discharged by way of electronic funds transfer (EFT) – the method of payment details will be provided to you by separate communication directly from the Company.
7.6 PERIOD FOR PAYMENT:- When you first engage our services, 50% of the initial invoice raised must be paid by theCustomer prior to commencement of the Services. The final balance is due at the “go live” stage when the Online Shop/MobileApp/Website is ready to be published. The monthly Subscription fee for the Initial Period and any Subsequent Period is payable prior to the date on which the Initial Period & any Subsequent Period starts by such method of payment as the Company may reasonably require.
7.6.1 After the Initial Period has expired theCustomer will automatically move to the subscription for the Subsequent Period unless we receive at least 14 days’ written notice from you prior to the end of theInitial Period that you want to cancel the Subscription. The notice of cancellation must be sent by email to email@example.com or firstname.lastname@example.org The Customer agrees that any outstanding balance remains due & owing & will be paid in full to the Company on request.
7.6.2. During the Subsequent Period, the Customer may cancel their Subscription by giving at least 30 days’ written notice prior to the end of their current monthly payment period by email to email@example.com or firstname.lastname@example.org The Customer agrees that any outstanding balance remains due & owing & will be paid in full to the Company on request.
7.6.3. The Company will inform you of any changes to the Subscription Fee (including any changes to any credit card / debit card charges)payable for a Subsequent Period at least four weeks before the start of theSubsequent Period.
7.7 FAILURE OF PAYMENT:- If payment of any sum becomes overdue interest will accrue at a rate of 8% per annum on the unpaid portion of the bill. Interest shall accrue within 14 days of when the payment fell due.
7.7.1 We reserve the right to suspend our services to include suspending the availability of the Online Shop/Mobile App/Website(or any part of it) pending receipt of payment in full of our invoice and/or the Subscription Fee together with all & any interest due thereon.
7.7.2 If you fail to pay the Subscription Fee for any Subsequent Period on the date that it falls due, we may suspend your access to the Service until the Subscription Fee is paid.
7.8 PAYMENT OF OUTLAYS:- The Customer will discharge same on an ongoing basis immediately as these invoices fall due. If the Customer for any reason cancelsServices which have been commissioned, the Customer will discharge the outlays which have been incurred by the Company prior to the cancellation or which may accrue as a result of such cancellation.
7.9 REFUNDS: If your Mobile App is not approved by the appropriate mobile platform provider you may terminate the contract however there will be no refund to you of any fees paid to date nor any waiving of fees which still remain due & owing.
8. TERMINATING THE CONTRACT
8.1 If the Customer for any reason cancels Services which have been commissioned charges will be payable for all the completed work up to the date of cancellation and for all other costs and expenses which have been incurred by the Company prior to the cancellation and for such other costs and expenses which may accrue as a result of such cancellation. Any such cancellation of Services must be notified in writing by providing the Company with 30 days’ notice.
8.2 The Company reserves the right to terminate the contract with the Customer on providing the Customer 30 days’ notice in writing of its intention to terminate the contract.
8.3 This Contract and your access to the Service may be terminated forthwith by written notice:
8.3.1 if you are in material breach of this Contract and the breach is not capable of being remedied or is not remedied within the period of 14 days after written notice of the breach has been given to you;
8.3.2 if the Customer enters into any compromise or arrangement with your creditors, or if an order is made or an effective resolution is passed for your winding up(except for the purposes of amalgamation or reconstruction as a solvent company) or if a receiver, manager, or administrator is appointed in respect of the whole or any part of your undertaking or assets or if there is any similar or analogous event in any jurisdiction affecting you;
8.3.3 if you cease or threaten to cease to carry on your Company or are otherwise unable to pay its debts as they fall due.
8.3.4 If you engage in Fraudulent Activity or Prohibited Activity.
8.3.5 If we reasonably believe you are in breach of any provision of this Contract we may suspend your access to the Service at any time.
8.4 After expiry or termination of the Contract for any reason theCompany shall be entitled to immediately remove any information about you from the Online Shop/Mobile App/Website.
8.5 TheCompany shall, in addition to all other rights and remedies under these Terms be entitled to terminate this Contract without notice in the event that any of its charges for the Services are not paid in accordance with these Terms.
9. LIMITATION OF LIABILITY
9.1 The Company will be relieved of all liability in respect of obligations owed to the Customer which we cannot fulfil for reasons beyond our control. For the avoidance of doubt such reasons include but are not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, public health pandemic, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
9.2 The Company shall not be liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third-party software, search engines or websites on which a service is dependent or other deliveries from a third party.
9.3 The Company shall not be liable for any changes made without notice by the Customer or a third party employed by the Customer to domain names, websites, content, links, technical setup etc. and affecting the Services delivered by us. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to theCustomer at the discretion of the Company.
9.4 The Company shall use all reasonable endeavours to deliver the Services. However, we shall not be liable for delays or deteriorating performance due to changes made to standard terms, algorithms, account functionality, account availability, search results, viewing policy, prices or other matters beyond our control and we reserve the right to make changes to Services as a result of the same. In addition, we shall not be liable for other changes or discontinuation of platform services or other third party services.
9.5 The Company shall not be liable for Services leading to a certain volume of traffic, number of clicks, likes, follows, registrations, purchases or the like.
9.10 The Company shall not bear any liability for any lack of success experienced by the Customer relating to the Services particularly if theCustomer does not implement some or all of the recommendations provided by theCompany.
9.11 The Company shall have no liability for any losses or damages which may be suffered by the Customer whether the same are suffered directly or indirectly or are immediate or consequential which fall into the following categories:
9.11.1 Any indirect or consequential loss arising under or in relation to the Contract even though the Company was aware of the circumstances in which such loss could arise;
9.11.2 Loss of profits; loss of anticipated savings; loss of business opportunity or goodwill.
9.12 To the extent such liability is not excluded by the terms of this Indemnity Clause, the total liability of the Company (whether in contract, tort(including negligence or otherwise)) under or in connection with the Contractor based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise will not in any event exceed the total sum invoiced for the Services.
10.1 A party (Receiving Party)shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the ReceivingParty’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause shall survive termination of the Contract.
10.2 During the term of theContract the Company shall take the same care as it uses with its own confidential information, to avoid, without the Customer’s consent, the disclosure to any third party (except a subcontractor working on the Services who is subject to similar undertakings of confidentiality) of any of theCustomer’s business or operational information which the Customer has designated as confidential.
10.3 The obligation in Clause 10.2shall not apply to any information which is or becomes publicly available otherwise than through a breach of this agreement, is already or rightly comes into the possession of the Company without an accompanying obligation of confidence, is independently developed by the Company, or which the Company is required to disclose by law.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 The Customer grants the Company a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to use, display, reproduce, re-pin, modify (e.g., re-format), re-arrange, and distribute your Work Materials and Content on the internet for the purposes of operating and providing the services to you.
11.2 It is the responsibility of the Customer to ensure that they have the right to use any Intellectual Property Rights when they provide any text, image or representation (“Materials”) to the Company for use in delivering theServices and the Customer hereby grants or agrees to procure the grant of (as applicable) an irrevocable licence to the Company to use such Materials for the purposes of providing the Services for the duration of the Contract.
11.3 The Customer shall be responsible for ensuring that the Work Materials andContent which the Customer has contributed or approved are not in contravention of legislation, decency, marketing rules or any other third-party rights. The Company shall be entitled to reject and delete such material without incurring any liability. In addition, the Company shall, at its discretion, be entitled to cancel the Services commissioned by the Customer.
11.4 The Customer shall indemnify the Company against all damages, losses and expenses suffered or incurred by the Company as a result of the Materials which the Customer has contributed or approved being in contravention of legislation, decency, marketing rules or any action that any such Materials infringe anyIntellectual Property Rights of a third party.
11.5 Both the Customer & the Company shall be obliged to notify the other party without undue delay of any claims raised against a party as described above.
11.6 Any ideas, concepts, know-how or techniques developed by theCompany or any of its employees or obtained during the execution of theServices will be owned exclusively by the Company.
12. STORING INFORMATION IN ELECTRONIC FORMAT
The Customer hereby agrees that the Company is not responsible for any loss of, or corruption of, information held by the Company by any off-site electronic storage service or cloud based services that we use. We will try to make sure that all such Companies we use are reputable.
In the event that you wish to make a complaint about any aspect of our Service(s), please send the complaint in writing to us and we will review it without delay and respond to you within 14 days.
This Contract shall be governed by and construed in all respects(including the formation thereof and the performance thereunder) in accordance with the laws of the Republic of Ireland and the Irish courts shall have exclusive jurisdiction in respect of all disputes.
15. ENFORCEMENT OF OVERALL AGREEMENT
If a court decides that any part of this agreement between you and us is invalid, this will not affect the remaining terms of this agreement.
You agree to defend, indemnify & hold harmless the Company, its officers, directors, employees and agents from and against any claims, actions or demands, including without limitation reasonable legal &accounting fees, alleging or resulting from your use of the Services or your breach of these Terms and Conditions and to include any loss including costs incidental to legal proceedings suffered by the Company as a result of the processing of personal data which the Customer has contributed being in contravention of the Data Protection Acts or any other relevant law. We shall provide notice to you promptly of any such claim, suit or proceeding and shall assist you, at your expense, in defending any such suit or proceeding.
18. DATA PROTECTION
You acknowledge and agree that the Company is not a DataController within the meaning of the Data Protection Act, 2018.
19.1 All notices shall be given to the Company in writing by email to to hello@MyApp.ie or lisa@SalonSolutions.ie or via post at Engage Marketing Ltd. trading as MyApp.ie and Salon Solutions, 38 Deepdales, Southern Cross Road, Bray, Co. Wicklow; or shall be given by the Company to you at either the email or postal address you provide.
19.2 Notice will be deemed received when an email is received (or else on the next business day if it is received on a weekend or a public holiday in the place of receipt) or 3 days after the date of posting.
20.1 We may transfer and/or assign our rights and/or our obligations under this Contract. This will not affect your rights under this Contract. You may not transfer any of your rights or obligations under this Contract.
20.2 Nothing in these Terms & Conditions shall confer your rights on any other person or entity.
21. ADDITIONALDEFINITIONS – MOBILE APPS
“FraudulentActivity” means any of the following activities:
(a)fictitious installation and/or download of a MobileApp;
(b) installing or uninstalling any program (including, without limitation, a Mobile App) on an End User's mobile device, without the EndUser's consent or any other similar practices;
(c) automated, deceptive, fraudulent, encouraged or other invalid searches in any web search feature, or searches for any purpose other than organic retrieval of information and web browsing in good faith;
(d) automated and/or fraudulent clicks on: ads, sponsored links, sponsored search results, Mobile App components, or such clicks for purposes other than retrieval of information in good faith;
(e) initiating or using a promotion in connection with a MobileApp which violates any applicable law or regulation, or an existing agreement between Customer and MyApp.ie and Salon Solutions or which is not consistent with industry standards and good practices;
(f) reverse engineer, bypassing and/or circumventing the Company platform, including any subscription plan available therein;
(g) hacking to a Mobile App or the Company platform or any part thereof, or using a Mobile App or the Company platform in order to hack into public or private infrastructure or equipment;
or (h) using in connection with a Mobile App or the Company platform any material that contains software viruses or any other computer code, files or programs designed to interrupt, hijack, destroy or limit the functionality of any computer software, hardware, network or telecommunications equipment.
“Intellectual Property Rights” means: (i) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (ii) all registered and unregistered trademarks, service marks, trade names, trade dress, logos and registrations and applications for registration thereof; (iii) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (iv) all trade secrets and confidential Company and technical information (including, but not limited to, research and development, know-how, proprietary knowledge, financial and marketing information, Company plans, formulas, technology, engineering, production and other designs, drawings, engineering notebooks, industrial models, software and specifications); (v) all rights in databases and data compilations, whether or not copyrightable; and(vi) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).
“Marks” mean trademarks, service marks, trade names, trade dress and associated logos, in each case, whether or not registered.
“Mobile App(s)” means any mobile application and/or mobile website generated or administered by the Customer via its use of the Company technology in compliance with the terms and conditions of this Contract, for use on mobile phone device, tablet, television and/or any other current or future platform or media.
“Monetisation Tool(s)” means advertisement and/or any other sponsored service, link or offering and/or search services, embedded in, bundled with or attached to the installation / download, usage or display of the Mobile App(s), and/or any promotion and/or marketing materials and/or merchandise provided by the company in connection with this Agreement. Monetisation Tools may include: web search services, advertisements or offering of additional applications or services.
“Prohibited Activity” means (a) any activity or use of Content that (i) encourages conduct that would be considered a criminal offense or could give rise to civilliability, or violates any applicable law, regulation or order of any court or tribunal including, but not limited to, collecting, using or disclosing personal information from any individuals in violation of applicable law, including without limitation personal information of minors in violation of applicable privacy law, including, without limitation, regulation and/or industry best practices; (ii) violates, misappropriates, or infringes any third party (including, without limitation, End Users) Intellectual Property Rights, rights of privacy and publicity, or other proprietary or legal rights; (iii)materially interferes or disrupts web navigation or browsing; (iv) involves rewards programs or actual monetary exchanges, without the Company’s express written approval ; or (v) modifications to other mobile applications (and/orContent on such mobile applications) used by End Users and controlled by third parties without the End Users' consent; (b) usage which adversely affects public or private infrastructure or equipment; (c) installation or un-installation of a Mobile App that is generated without an accurate and conspicuous disclosure and without informed consent or any other similar practices; (d) Fraudulent Activity; (e) use, endorsement, and/or promotion ofContent which: (i) promotes or advocates pornographic, obscene, excessively profane, racist, ethnically offensive, threatening, infringing, excessively violent, libellous, gambling-related, or discriminatory activity, promotes illegal drugs or arms trafficking, violates laws, creates a risk to a person's safety or health, compromises national security or interferes with an investigation by law enforcement officials, or is offensive, misleading or deceptive material or is any type of malware; (ii) promotes, advocates or facilitates terrorism, terrorist-related activities or violence; or (iii) contains excessive or inappropriate advertisements as determined by the Company in its sole discretion; (f) using a Mobile App or the Company platform to offer, distribute or promote any mobile application that is substantially similar to the Mobile App; or (g) redirecting traffic or replacing web pages or any other pages available in a Mobile App to web pages or other pages which promoteContent or products which may adversely affect the use of the Mobile App and/or violates any of the prohibitions contained herein; or (h) Mobile App Customisation