Terms of Use

Augmara Technologies GmbH Terms of Use 04/18

These Terms of Use (“ToU”) together with any policies or legal notices that we may publish from time to time (such as our Privacy Policy) govern your use of the Service (as hereinafter defined), both free trial and paid, and your relationship with Augmara. Please read them carefully as they affect your rights and liabilities under the law.

By accepting these ToU or installing or otherwise using the Service, you are agreeing to be bound by these ToU and you acknowledge that you have read, understood and agree to abide by and comply with all terms, conditions and notices contained in or referenced by these ToU, and that you have the authority to do so.

If you do not agree to be bound by these ToU (including those documents referenced herein), no agreement will exist between you and Augmara. In this case you must not install or use the Service.

We may, at our sole discretion, revise, modify or replace these ToU by updating the posting on the Augmara Website (as hereinafter defined) at any time with or without notice to you. You should visit the Augmara Website from time to time to review the current version of the ToU because they are binding upon you.

1.   DEFINITIONS

1.1    “Account Holder” means the entity or person in whose name an account is registered.

1.2    “Applicable Laws” means any applicable domestic or foreign law including any statute, subordinate legislation or treaty, any applicable judgment, injunction, award or decree of any domestic or foreign legislative, executive, judicial or administrative body or person having or purporting to have jurisdiction in the relevant circumstances or instrumentality thereof including any federal, state, provincial or municipal body or entity, in each case that relate to the use of the Service.

1.2    “Authorized User” means an employee or contractor who is for the time being authorised by the Account Holder to access and use the Service.

1.3    “Augmara” (or “we”) means Augmara Technologies GmbH, Dorfstrasse 27, 8037 Zurich, Switzerland.

1.4    “Augmara Account” means the account registered with Augmara by which the Account Holder and (where applicable) their Authorized Users access the Service.

1.5    “Augmara Website” means our website for the Service located at the Url https://www.augmara.com/

1.6    “Content” means any content, data or other information that you create, store, processe and/or make available using the Service including but not limited to written text, illustrative, photographic, animated, video or audio content.

1.7    “Intellectual Property Rights” means all intellectual property rights, industrial property rights and other similar rights recognized throughout the world now or hereafter in force or recognized, including: (i) copyrights, rights in trade secrets, rights in marks, patents, design rights, data base rights, rights in processes, rights in methods, moral rights, mask work rights, publicity and personality rights, and privacy rights; and (ii) any application or right to apply for any of the rights referred to in paragraph (i), and all enhancements, improvements, renewals, extensions and restorations.

1.8    “License Plan” means the Service plan for which you signed up, the details of which are published on the Augmara Website as may be changed from time to time in Augmara’s sole discretion.

1.9    “Service” means the Augmara service and technology including, jointly or severally, the Augmara CMS, the Augmara App, the Augmara White Label App and the Augmara SDK, together with its related databases, features, functionality, plug-ins, software, templates, tools, documentation and web page including any modifications or updates thereto.

1.10    “Third Party” means any person or entity that is neither you nor an Authorized User nor Augmara.

1.11    “User” means the Account Holder and/or any Authorized User.

1.12    “you” (or “your”) means you, the person using the Service or registering as an Account Holder.

2.   AUGMARA SERVICE LICENSE

2.1    Grant of license

Subject to your full and ongoing compliance with these ToU and unless expressly agreed otherwise in written form in an individual agreement between Augmara and you, Augmara hereby grants to Account Holder, and Account Holder accepts, a limited, non-exclusive, non-transferable, non-assignable, revocable license to use the Service only as authorized by these ToU during the term.

2.2    Third Party Licenses

The Service may contain Third Party software. The license terms associated with such programs apply to your use of them, and in some instances such programs cannot be used or further distributed without a license from the respective owner of such programs. Unless otherwise advised by Augmara, you shall be solely responsible to obtain, if necessary, a separate and independent license from such owner with respect to any such use.

2.3    License restrictions

You are obliged to use the Service in a responsible manner and in compliance with all applicable laws and only for purposes that are permitted by these ToU. Use of the Service for unlawful or unethical purposes, in particular for the purpose of creating, storing and/or making available Content serving such purposes is prohibited. If Content you create, store, process and/or make available does not meet the legal requirements of a country, region or territory, you undertake not to release, distribute or otherwise make it available in the respective country, region or territory. In general you may not use the Service to

(a)     create, store, process and/or make available Content including or consisting of intellectual property of Third Parties (e.g. copyright protected material, protected trademarks, patents or designs, protected trade secrets) to which you do not own the licenses and/or permissions required to include it in Content you create and/or make available. If you own the license or permission to use intellectual property of a Third Party, you undertake to comply with all requirements of such license and/or permission (e.g. copyright ownership credits);

(b)     create, store, process and/or make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;

(c)     harm minors in any way;

(d)     create, store, process and/or make available any Content by use of software/files including code that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of Augmara or any Third Party.

2.4    Prevention of unauthorized use

2.4.1     Augmara is entitled to make the grant of a license for the Service subject to use of a license key provided to you by Augmara. You acknowledge and consent that Augmara reserves the right to gather the following data on key usage from you and Authorized Users:

(a)     Used license key in case of Augmara White Label App and Augmara SDK; and

(b)     device IP addresses or other device identifying data, including MAC addresses, IMEI codes or UDID; GSM Cell-ID, Location Area Code

to ensure that the Service is being used in accordance with these ToU.

2.4.2     Sharing a license key provided to you by Augmara with any Third Party is strictly prohibited and may lead to your prosecution for intentional infringement of Augmara’s rights under civil as well as criminal law. If Your license key is stolen or if you suspect any unauthorized use of the license key you undertake to promptly notify Augmara. You undertake to cooperate with and assist Augmara in preventing, identifying and prosecuting any unauthorized use of license keys and/or the Service.

2.5    No transfer of ownership in intellectual property

2.5.1     Except for the limited and revocable license granted to you herein, the license and these ToU do not transfer any Intellectual Property Rights from Augmara to you or to any Third Parties.

2.5.2     These ToU do not grant you any right or license to use trademarks or any other protected designations of Augmara.

3.    FEES AND PAYMENT

3.1    Unless expressly stated on the Augmara Website, use of the Service will require payment by the Account Holder of a fee either on a monthly or annual subscription basis. Augmara operates a “NO RETURNS” policy across all our accounts and all fees charged for the use of the Service (including any VAT and other taxes charged on the fees) are non-refundable except as required by law.

3.2    You must pay all fees applicable to your use of the Service in accordance with our current published pricing. You must pay the fees by the date and in the manner described in the invoice or billing agreement. All fees charged for using the Service are exclusive of taxes, levies or duties (e.g. VAT or other sales taxes) imposed by taxation authorities, and you shall be responsible for payment thereof in addition to the fees. Charges are payable in the currency reflected in the relevant invoice or billing agreement.

3.3    Any fees not paid in full as and when due shall incur interest which shall accrue on such unpaid amounts at an annual rate of 5% commencing on the due date and continuing until fully paid, whether before or after any judgment.

3.4    Augmara reserves the right to change the payment terms and fees at our sole discretion by giving notice to you. The amended fees and/or terms will (unless stated otherwise) be effective from the date of that notice and will apply to any fees incurred by you following the effective date of that price change.

3.5    All payments for fees made on the Augmara Website are processed on our behalf by third party payment providers. You accept that Augmara is not responsible for these third party payment providers and their operation or availability. By agreeing to these ToU, you authorise Augmara or our nominated payment provider to make any reasonable and necessary enquiries to validate your Augmara Account and financial information.

4.    CONTENT AND TRADEMARK LICENSE TO AUGMARA

By creating, storing, processing and/or making available Content by use of the Service you grant to Augmara a world-wide, royalty-free, irrevocable, perpetual, transferable, and non-exclusive license

(i)     to copy, reproduce, make available, or otherwise use your Content for administrative, promotional, marketing and demonstration purposes;

(ii)    to copy, reproduce, make available or otherwise use your trademarks and logos in order to designate your Content;

(iii)     to modify, adapt and translate your Content and to copy, reproduce, make available, or otherwise use such modified, adapted or translated versions of your Content for the above purposes. That includes (but is not limited to) reformatting as well as creating repurposing snippets and shrinking images.

5.    USER WARRANTY AND INDEMNITY

5.1     Without prejudice to any representations or warranties given by you elsewhere in these ToU, you represent, warrant and undertake that:

(a)       Any Augmara Account created by or on your behalf is for your own personal or business use and the account has not, without express permission, been created with the intention to impersonate, falsely represent or create a false association with another person;

(b)       Your use of the Service will be in strict accordance with these ToU, our Privacy Policy and with all applicable laws and regulations including any local laws or regulations in your country, state, city or other governmental area regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of personal data outside the country in which you reside;

(c)       You will comply with the rules and regulations of your mobile device service providers, internet service providers and other Third Party service providers;

(d)      you will comply with the prudent practices, methods, specifications and standards of safety and performance commonly used in operations similar to those of your business or profession, including any advertising standards, professional standards or codes of practice; and

(e)       All information provided by you to Augmara is and will remain throughout your use of the Service true, accurate and complete. You will promptly notify Augmara of any material change in that information.

5.2     You acknowledge that any breach of these ToU may cause Augmara damage or loss and you agree to indemnify and hold harmless Augmara and its employees, directors and shareholders against any and all liabilities, claims, actions, proceedings, losses, damages, expenses and costs (including court costs and legal fees) whether direct, indirect or consequential and including any economic loss or other loss of profits, business or goodwill which Augmara or any of its employees, directors or shareholders may suffer or incur as a result of any of the following matters:

(a)   Your use of the Service;

(b)   Any breach by you or anyone acting on your behalf of these ToU.

6.    DELIVERY, AVAILABILITY AND MODIFICATION OF THE SERVICE

6.1     General

6.1.1     You acknowledge and hereby accept that the nature and form of the Service may be subject to temporary and/or permanent changes without prior notice (including but not limited to updates, bug fixes and patches) and that future versions of the Service may be incompatible with applications developed on previous versions of the Service.

6.1.2     Augmara reserves the right at any time and from time to time – at Augmara’s sole discretion – to stop providing the Service, features within the Service, extensions, plugins or services to you or to any Third Party. Augmara reserves the right to discontinue the Service with immediate effect. If the Service is discontinued prior to termination of your Service plan, you will be entitled to reimbursement of the proportionate part of the paid license fee. No further claims derive from discontinuation of the Service.

6.1.3     You acknowledge and agree that Augmara shall not be liable to you or to any Third Party for any modification of the nature and form of the Service or for stopping to provide the Service.

6.1.4     Augmara will strive for continuous availability of the Service. However, interruptions of availability of the Service may appear. Augmara does not warrant any minimum availability of the Service unless a certain minimum liability has been separately agreed in writing.

6.2     Hosting Services

6.2.1     The Service allows you to upload Content to servers hosted by Augmara and/or Third Parties cooperating with Augmara for the purpose of storage and processing of Content.

6.2.2     You understand that in respect of uploads as mentioned above, Augmara acts as a mere provider of storage space for you Content. Augmara does not control or evaluate such Content. It is exclusively your obligation to control such Content for accuracy and compliance with the requirements under Applicable Law as well as under these ToU and to remove such Content immediately if it has been claimed to violate or infringe upon rights of a Third Party and You cannot prove such claim manifestly unfounded.

6.2.3     Notwithstanding the above, Augmara reserves the right to amend, remove or block any Content uploaded by you if Augmara considers or a Third Party claims such Content being inaccurate or inappropriate or in violation of Applicable Law or the ToU.

7.    PRIVACY AND DATA PROTECTION

7.1    You should carefully read our full Privacy Policy before deciding to become a User. The Privacy Policy forms part of these ToU and governs our treatment of any information, including personally identifiable information, you submit to us via the Service. By using the Service you agree to and consent to our processing your information in accordance with our Privacy Policy. Please note that certain information, statements, data and Content which you may submit to us as part of your use of the Service may reveal your gender, ethnic origin, nationality, age and/or other personal information about you. You acknowledge that your submission of any information, statements, data and content to us is entirely voluntary.

7.2    Your use of the Service may also result in cookies being placed on your computer equipment or mobile device.

7.3    Except as expressly stated otherwise in our Privacy Policy, the User is responsible for any collection, storage, disclosure and use of, and access to, personal information of any person that relates to the User’s use of the Service including any personal information comprised in your Content. In particular, it is understood that the Privacy Policy mentioned in Clause 8.1 does not apply to any personal information that the User collects from end-users of their Content in their capacity as controller of the data file . The User must ensure that they inform their end-users of what personal information the User collects from end-users of their Content and how the User will use the information.

7.4    If Augmara processes any personal data on a User’s behalf when providing the Service, the parties record their intention that the User shall be the controller of the data file and Augmara shall be the party processing such data and in any such case:

(a)       The User acknowledges and agrees that the personal data may be transferred or stored outside Switzerland or the country where the User is located in order to carry out the Service and Augmara’s other obligations under these ToU;

(b)      The User shall ensure that the User is entitled to transfer the relevant personal data to Augmara so that Augmara may lawfully use, process and transfer the personal data in accordance with these ToU on the User’s behalf;

(c)       The User shall ensure that the relevant third parties (including end-users of the User’s Content) have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

(d)       Augmara shall process the personal data only in accordance with applicable legislation, the terms of these ToU and any lawful instructions reasonably given by the User from time to time; and

(e)    Each party shall take appropriate technical and organisational measures against  unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

7.5    In this Clause 8 the expressions “personal data”, “processing”, “data file” and “controller of the data file” have the meaning given to them by Section 1, Article 3  of the Federal Act of Data Protection of 19 June 1992 (Status as of 1 January 2014).

8. TERM AND TERMINATION

8.1     The agreement between you and Augmara is concluded with your purchase of the Service and becomes effective upon your acceptance of these ToU.

8.2     You may terminate the agreement between you and Augmara in accordance with the terms specified in your License Plan.

8.3     Either party may at any time terminate the agreement concluded between Augmara and you under the ToU for cause with immediate effect. In particular, the following constitutes cause for immediate termination by Augmara: If you use the Service in a way that is in breach of the granted license, in particular if you provide access to the Service to Third Parties; if you infringe any Intellectual Property Rights of Augmara or other Third Parties; if you breach other essential provisions of the ToU.

8.4     After termination You are no longer entitled to use the Service; neither are you entitled to any other services by Augmara related to the Service for which the license terminated. Augmara is entitled to take technical measures to prevent further use of the Service after the license terminated.

Furthermore, you will undertake the following measures:

(a)    In case your license was for an Augmara White Label App, you will remove your Apps from the App Store and/or Goolge Play with immediate effect;

(b)    In case your license was for the Augmara SDK you will remove the latter and publish an update of your App(s) without the SDK with immediate effect;

(c)    In case you opted for your own hosting of the cloud database or the cloud storage, you fully delete your data with immediate effect.

9.    DISCLAIMER OF WARRANTIES FOR SERVICE

9.1    YOU EXPRESSLY UNDERSTAND AND AGREE THE FOLLOWING:

9.2    THE SERVICE IS PROVIDED ON AN „AS IS“ AND „AS AVAILABLE“ BASIS.

9.3     YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. AUGMARA EXPRESSLY DISCLAIMS ALL WARRANTIES, ENDORSEMENTS, GUARANTEES, CONDITIONS AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF DURABILITY, MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, ACCURACY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE.

9.4     IN PARTICULAR, AND WITHOUT LIMITING THE FOREGOING, AUGMARA MAKES NO WARRANTY THAT:

(a)     THE SERVICE OR ITS FUNCTIONALITY AND QUALITY WILL MEET YOUR REQUIREMENTS AND EXPECTATIONS.

(b)     THE PROVISION OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE OF DEFICIENCIES AND INTERRUPTIONS.

(c)     ANY DEFICIENCIES AND ERRORS IN THE SOFTWARE WILL BE CORRECTED.

9.5     NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM AUGMARA SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS AND CONDITIONS.

9.6     SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY RESULTING FROM SUCH WARRANTIES. ACCORDINGLY, IF PROVISIONS OF SUCH JURISDICTIONS OVERRULE THE CHOICE OF LAW MADE IN THESE TOU, SOME OF THE ABOVE LIMITATIONS ABOVE MAY NOT APPLY TO YOU.

10.    LIMITED LIABILITY FOR DAMAGES CAUSED BY PUBLISHER PRODUCTS

10.1     YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AUGMARA SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF AUGMARA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), (i) ARISING OUT OF OR RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR (ii) RESULTING FROM PRODUCT WARRANTIES, END USER ASSISTANCE AND PRODUCT SUPPORT WITH RESPECT TO THE SERVICE AND/OR APPLICATIONS DEVELOPED WITH THE HELP OF THE SERVICE. IN PARTICULAR, TO THE EXTENT PERMISSIBLE UNDER SWISS LAW, LIABILITY FOR SLIGHT NEGLIGENCE IS EXCLUDED.

10.2     ANY USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA OR ANY OTHER DAMAGE THAT RESULTS FROM THE USE OF THE SERVICE, RESPECTIVELY.

10.3     YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR (AND THAT AUGMARA HAS NO RESPONSIBILITY TO YOU OR TO ANY THIRD PARTY FOR) ANY CONTENT; INFORMATION YOU CREATE, DISTRIBUTE AND/OR MAKE PUBLICLY AVAILABLE AND FOR THE CONSEQUENCES OF YOUR ACTIONS (INCLUDING LOSS OR DAMAGE WHICH YOU OR THIRD PARTIES MAY SUFFER).

10.4     SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS ABOVE MAY NOT APPLY TO YOU.

11.     YOUR LIABILITY AS CONTENT PROVIDER

YOU HEREBY ACKNOWLEDGE THAT YOU ARE FULLY LIABLE AS THE SOLELY RESPONSIBLE PUBLISHER OF ANY CONTENT THAT YOU MAKE AVAILABLE USING THE SERVICE FOR ANY DAMAGE CAUSED TO AUGMARA OR TO ANY THIRD PARTY TROUGH OMISSION OF YOUR OBLIGATION TO CONTROL THE CONTENT YOU MAKE AVAILABLE THERIN FOR ACCURACY AND COMPLIANCE WITH THE REQUIREMENTS UNDER APPLICABLE LAW AS WELL AS UNDER THE TOU.

12.     INDEMNIFICATION

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD AUGMARA AND ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND INDEPENDENT CONTRACTORS HARMLESS FROM AND AGAINST ANY LOSS, LIABILITY, CLAIM, DEMAND, DAMAGES, COSTS AND EXPENSES INCLUDING REASONABLE ATTORNEYS FEES AND DISBURSEMENTS MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR USE OF THE SERVICE IN VIOLATION OF ANY APPLICABLE LAW OR THE TOU, IN PARTICULAR DUE TO ANY CONTENT OR INFORMATION INCLUDED THEREIN INFRINGING ANY COPYRIGHT, TRADEMARK, TRADE SECRET, TRADE DRESS, PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT OF ANY PERSON OR DEFAMING ANY PERSON OR VIOLATING THEIR RIGHTS OF PUBLICITY OR PRIVACY.

13.    MISCELLANEOUS

13.1     Augmara holds the sole right to modify or replace the ToU. If changes have been made, a new version of the ToU will be published and made available on the Augmara Website.

It is agreed that the continued utilization of the Service after the publication of a new version or modification of the ToU will be regarded as an acceptance of the new or modified ToU.

13.2     Unless otherwise agreed by Augmara in writing, the ToU and the Privacy Policy form the entire agreement between you and Augmara concerning the subject matter herein, and supersedes all prior communications, proposals and representations with respect to the Service or any other subject matter covered herein.

13.3     Notwithstanding any provision hereof, for all purposes of the ToU, it is acknowledged that you shall be and act independently and not as partner, joint venturer, agent, employee or employer of Augmara. You shall not have any authority to assume or create any obligation for or on behalf of Augmara, expressively or implied, and shall not attempt to bind Augmara to any contract.

13.4     Except as provided in the ToU, neither party may use the name, trademarks, trade names, domain names or other designation of the other party without the written approval of the other party. Augmara may use your name, trademarks, trade names, domain name and other designations in connection with disclosing the nature of your relationship with Augmara.

13.5     The failure of any party at any time to enforce or require performance of any provision hereof shall in no way operate as a waiver or affect the right of such party at a later time to enforce the same. Any waiver of an obligation, agreement or condition contained herein shall be valid and effective only if in writing and signed by the party to whom such compliance is owed. No such waiver shall be deemed to be a waiver of any subsequent breach, claim or failure to perform, or of any obligation, agreement or condition other than the one expressly waived.

13.6     If any provision of the ToU is held invalid or unenforceable, the provision will be construed to reflect the party’s original intent. Despite the invalidity or unenforceability of such provision, all other provisions of the ToU will remain in full force and effect.

14.    APPLICABLE LAW AND JURISDICTION

These ToU shall be governed and construed by the laws of Switzerland. Any dispute arising out of or in connection with the ToU and the use of the Service, including disputes on its conclusion, binding effect, amendment and termination, shall be subject to the exclusive jurisdiction of the competent courts of Augmara’s registered seat (Zurich, Switzerland).