Terms of use

Effective date: May 25, 2018

PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.

These Terms of Use (the “Terms”) are a binding contract between you and Megacool, Inc. (“Megacool,” “we” and “us”). You must agree to and accept all of the Terms, or you don’t have the right to use our website(s), products, SDK, services and applications (the “Services”). If you are using the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services. These Terms include the provisions in this document, as well as those in the Privacy Policy.

Will these Terms ever change?

We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on megacool.co. If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes. Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.

What about my privacy?

Megacool takes the privacy of its users very seriously. For the current Megacool Privacy Policy, please click here Privacy Policy. The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, Please do not use any products or services where our Services are integrated or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at hello@megacool.co.

What are the basics of using the Service?

You are responsible for any activity that occurs through your account and you agree you will not sell, transfer, license or assign your account. You promise to provide us with accurate, complete, and updated registration information about yourself. You are responsible for keeping your password secret and secure.

The Services are available only to individuals who are at least 18 years old and to companies that are appropriately licensed and otherwise legally permitted to conduct business. If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).

You will only use the Services for your own internal uses, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for you using the Services in a way that breaks the law.

Your use of the Services is subject to the following additional restrictions: You represent, warrant, and agree that you will not contribute any Content (defined below) or otherwise use the Services or interact with the Services in a manner that:

  1. Infringes or violates the intellectual property rights or any other rights of anyone else (including the Service);
  2. Violates any law or regulation, including any applicable export control laws;
  3. Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
  4. Jeopardizes the security of your Megacool account or anyone else’s (such as allowing someone else to log in to the Services as you);
  5. Attempts, in any manner, to obtain the password, account, or other security information from any other user;
  6. Violates the security of any computer network, or cracks any passwords or security encryption codes;
  7. Copies or stores any significant portion of the Content;
  8. Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.

A violation of any of the foregoing is grounds for termination of your right to use or access the Services. In addition, by using the Services and/or incorporating our products into your app, you agree and confirm that you will have and enforce terms of use and a privacy policy that are consistent with and which contains obligations on your end users which are at least as restrictive/protective of the Service and its intellectual property as Megacool’s terms of use and Privacy Policy, or alternatively, that you will require your end users to read and accept Megacool’s terms of use and privacy policy prior to using your app which incorporate the Services.Further, using either of the options in the preceding sentence, you agree and confirm that you will obtain your end users’ prior consent to allow Megacool to collect, store, and use such end users’ Personal Information and data in accordance with Megacool’s Privacy Policy prior to such end users using any app which incorporates the Services.

What are my rights in the Services?

The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, code, photos, images, illustrations, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Megacool’s) rights.

You understand that Megacool owns the Services and all code and technology associated therewith. You won’t and won’t permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in these Terms of Use), translate, or create derivative works based on the Services or Software; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations. The Services may allow you to copy or download certain Content.

What about intellectual property rights in the Services?

Except as expressly set forth herein, Megacool alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any third party relating to the Service and/or the Software, which are hereby assigned to Megacool. You will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Megacool does not claim ownership of any data that you provide on or through the Services. Instead, you hereby grant to Megacool a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the data that you post on or through the Service, subject to the Privacy Policy, available here Privacy Policy.

Will Megacool ever change the Services?

We’re always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.

Does the Service cost anything?

The cost of using Megacool depends on your usage and financial situation. See Megacool's pricing here.

What if I want to stop using the Services?

You’re free to do that at any time, by contacting us at hello@megacool.co; please refer to our Privacy Policy, as well as the licenses above, to understand how we treat information you provide to us after you have stopped using our Services.

Megacool is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. Megacool has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.

Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account.

If you have deleted your account by mistake, contact us immediately at hello@megacool.co – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.

Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.

What about data and the European GDPR rules on data?

Good question! Because the service that Megacool offer uses data then GDPR applies to us and we take data protection very seriously.

We have a section about GDPR here and this explains our and your obligations.

In order to keep this simpler we have used a number of definitions which you can see here:

  • The terms, “Commission”, “Data Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, and “Processing” shall have the meanings given to them in the GDPR.
  • Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
  • EEA” means the European Economic Area;
  • EU Data Protection Laws” means the EU Directive 95/46/EC and EU Directive 2002/58/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
  • GDPR” means the EU General Data Protection Regulation 2016/679;
  • Subprocessor” means any person (excluding an employee of the relevant party) appointed by or on behalf of either party to Process Personal Data on behalf of such party.

Both you and Megacool have certain requirements under the Data Protection Laws and we both need to work together to do this.

In respect of any Processing under these Terms for which you and Megacool are joint Controllers both you and use will provide the other party any co-operation reasonably requested to enable the other party’s compliance with Data Regulation.

Both you and Megacool need to shall take appropriate measures to provide Data Subjects with information about how Personal Data is being processed by or on behalf of that party, which shall include, subject to any applicable exemptions, all the information required by Articles 13, 14 and 26 of the GDPR, and you will include a notice within the privacy policy which you communicate to your users, explaining how you and Megacool Process any relevant Personal Data and directing those users, including via a link, to the Megacool privacy policy.

The Data Protection Laws also applies to which people in your company can access Personal Data and so you need to ensure that access is: strictly limited to those individuals who need to know and/or access the relevant Personal Data and as strictly necessary for the purposes of your duties in relation to the Personal Data and in compliance with Data Protection Laws.

Both you and Megacool shall in relation to Personal Data, implement appropriate technical and organisational measures to ensure an appropriate level of security, including, as appropriate, the measures referred to in Article 32(1) of the GDPR. In doing so, we need to take into account:

  • the state of the art, the costs of implementation and the nature, scope, context and
  • purposes of Processing; and
  • the risk of varying likelihood and severity for the rights and freedoms of natural persons.

In assessing the appropriate level of security, you and Megacool shall in particular take account of the risks that are presented by Processing, including from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise Processed.

If you are using a Subprocessor then you shall carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Personal Data required by applicable Data Regulation and ensure that the arrangement with such a Subprocessor, is governed by a written contract including terms meet the requirements of Article 28(3) of the GDPR. You need to do this before they Process any Personal Data.

In the event that there is a request for information from a Data Subject that each of us shall fulfil our obligations to respond to requests to exercise Data Subject rights under the Data Regulation and provide any co-operation reasonably requested to enable compliance with this request.

If there is a Personal Data Breach then each of us needs to do the following: notify the other without undue delay upon becoming aware of a Personal Data Breach; and provide the other party with sufficient information to allow it to meet any obligations to report or inform Data Subjects or Supervisory Authorities of the Personal Data Breach under or in connection with the Data Regulation; meaningfully consult with the other party in respect of the external communications and public relations strategy related to the Personal Data Breach and insofar as permitted by the Data Regulation, not issue a press release or communicate with any member of the press in respect of the Personal Data Breach, or notify any data protection regulator of the Personal Data Breach without having obtained prior written consent of the other party (such consent not to be unreasonably conditioned, withheld or delayed).

When the notification for the Personal Data Breach is put together it needs to include:

  • describe the nature of the Personal Data Breach, the categories and numbers of Data Subjects concerned, and the categories and numbers of Personal Data records concerned;
  • describe the likely consequences of the Personal Data Breach; and
  • describe the measures taken or proposed to be taken to address the Personal Data Breach.

You shall co-operate with Megacool and take such reasonable commercial steps as are directed by Megacool to assist in the investigation, mitigation and remediation of each Personal Data Breach.

Neither you nor us shall transfer Personal Data to countries outside of the EEA in breach of applicable Data Regulation. This means that is you have servers outside the EEA you need to have protections in place like Privacy Shield for the US.

You warrant to Megacool that you will do and continue doing the following: any Processing under this Agreement, undertaken by Megacool acting as a Data Processor on behalf of you acting as a Data Controller, and in accordance with these Terms, complies with Data Regulation. to the extent that Megacool is a Data Controller and you are a Data Processor, (or, as applicable, Megacool is a Data Processor and you are a Subprocessor) you will: Process Personal Data only in accordance with Megacool’s documented instructions, including the Terms, and including in respect of the deletion or return of Personal Data; assist Megacool in all respects necessary to enable or assist Megacool to comply with Data Regulations including by notifying Megacool where you believe that an instruction of Megacool in connection with Processing Personal Data does not comply with Data Regulation; make available to Megacool all requested information in respect of Personal Data, including, on at least 14 days prior written notice and during normal business hours, permitting Megacool, or any of its auditors or advisors, to attend your premises in order to inspect your systems and records to the extent determined by Megacool to be necessary to demonstrate your compliance with these Terms.

Importantly you will not do or omit to do any act which may cause Megacool to be in breach of any of its obligations under the Data Regulation.

What else do I need to know?

Warranty Disclaimer. Neither Megacool nor its licensors or suppliers makes any representations or warranties concerning any content contained in or accessed through the Services, including without limitation any Resulting Data, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from Megacool or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES AND CONTENT ARE PROVIDED BY MEGACOOL (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL MEGACOOL (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID BY YOU TO MEGACOOL IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

Indemnity. To the fullest extent allowed by applicable law, You agree to indemnify and hold Megacool, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms.

Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Megacool’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.

Choice of Law; Arbitration. These Terms are governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND MEGACOOL ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Megacool may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Megacool agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Megacool, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Megacool, and you do not have any authority of any kind to bind Megacool in any respect whatsoever. You and Megacool agree there are no third party beneficiaries intended under these Terms.

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