Corona Labs Inc.
Terms of Service
Updated October 1, 2016
PLEASE READ THESE TERMS OF SERVICE (THE “AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY CORONA LABS INC. (“CORONA”). YOUR USE OF THE SERVICES IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. BY CLICKING THE “SUBMIT” (OR SIMILAR) BUTTON, OR BY USING THE SERVICES IN ANY MANNER (AS APPLICABLE) (i) YOU OR THE ENTITY YOU REPRESENT (“CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS, AND (ii) YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER.
1. Use of Services; Restrictions. During the Term (as defined below) and subject to compliance with the provisions of this Agreement, Corona grants to Customer a personal, nonsublicensable, nonexclusive license to access the Corona services ordered by Customer (the “Services”) solely in accordance with the documentation supplied by Corona, solely for Customer’s internal business purposes. Customer’s use of the Services shall be subject to any additional limitations (e.g., maximum number of seats, developers, or instances) which are set forth at http://coronalabs.com/service-limitations/, and Customer’s use of any paid portion of the Services shall be subject to the payment of all applicable fees and/or revenue share. Any documentation or underlying software obtained by Customer in connection with Services (including, without limitation, Corona SDK, Corona Enterprise and CoronaCards) is deemed to be a part of Services and is subject to all the disclaimers, limitation and restrictions herein relating to the Services. Customer shall not: (i) reproduce, modify, translate, or create derivative works of the Services, any underlying ideas, technology, or related software, or any portion thereof; (ii) copy, rent, sell, lease, distribute, publish, circulate, disseminate, pledge, assign, or otherwise transfer, encumber rights to, or allow access to the Services or any part thereof, or provide on a service bureau basis, use or seek to commercially exploit any of the foregoing for the benefit of any third party; (iii) reverse assemble, reverse compile or reverse engineer any software related to the Services, or otherwise attempt to discover any such software source code, object code, or underlying Proprietary Information (as defined below), except to the extent that such restriction is prohibited by applicable law; (iv) access (or attempt to access) the Services in any unauthorized manner or attempt to circumvent any access controls on the Service or any component or feature thereof; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use or develop any third-party SDK or plugin used in the purpose of monetization, including but not limited to: advertising, advertising mediation, advertising serving, in-app purchase management, or any such plugin that generates revenue not expressly permitted by Corona Labs; or (vii) use Corona Software or Services to create, modify, or develop software that promotes or provides a real-money gambling service. Customer represents and warrants that its use of the Services will be in compliance with all applicable laws and regulations.
2. Entity Size and Use Restrictions. The “Small Business” versions of Corona Enterprise may not be used by commercial entities with annual gross revenues of more than $500,000 USD or by educational or governmental entities with budgets of more than $500,000 USD. Any legal or incorporated entity may not combine usage of Corona SDK and Corona Enterprise and must have all users of Corona products licensed at the same feature version. If, during the term of use of Corona software or service, Customer’s or Corporate Entity represented by Customer’s yearly gross revenue exceeds the threshold of $500,000 USD you agree that you may no longer use your current tier of service and must upgrade to the Unlimited tier of Corona Enterprise. You agree to immediately notify Corona Labs in writing when you surpass the tier threshold above while using Corona SDK or Corona Enterprise Small Business tier products.
3. Modifications. Corona reserves the right, at its sole discretion, to modify or replace this Agreement, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Services or by sending you an email. Corona may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. It is your responsibility to check this Agreement periodically for changes. Your continued use of the Services following the posting of any changes to this Agreement constitutes acceptance of those changes.
4. Security; Support. Corona shall: (i) use reasonable commercial efforts to maintain the security and integrity of the Services; and (ii) subject to Customer’s payment of any applicable premium support fees, provide Customer with support for the Service in accordance with Corona’s then-current premium support policies set forth at http://coronalabs.com/support-policies/ Customer acknowledges and agrees that Corona does not provide any support commitments unless Customer has purchased premium support, and that any support provided by Corona in such instance shall be at Corona’s discretion. Notwithstanding anything to the contrary, Corona’s obligations under this section shall not apply during any Trial Period (as defined below). Corona shall have the right (but not the obligation) to modify, update, upgrade or extend the Services (including, without limitation, for the purposes of adding feature and functionality, or enhancing security or usability).
6. Fees. Following any applicable Trial Period (as defined below), Customer shall pay Corona all fees applicable to the particular Services ordered by Customer (“Fees”). All Fees paid to Corona hereunder are nonrefundable. Any amounts payable hereunder are exclusive of all sales taxes, value added taxes, duties, use taxes, withholdings and other governmental assessments. Customer shall pay all such taxes and governmental assessments associated with the Services (excluding taxes based on Corona’s net income), unless Customer provides to Corona a valid tax-exempt certificate. Corona Labs may increase, modify or add new fees and charges for any of the Services from time to time by posting such changes to the Site or via direct communication. Corona Labs will provide you with at least 30 days’ notice of any changes affecting existing Corona software or services you have already started using, and your continued use of such Software or Service after the effective date of any such change means that you accept and agree to such changes, as applicable.
You agree to pay all amounts due for the Services as set forth in the online cart, quote or invoice and in accordance with Corona’s payment terms and, if applicable, those of any payment processor. If any payment is not made on time, Corona Labs may deactivate your access to the Services. All sales are final and there will be no refunds except as required by law.
7. Warranty Disclaimer. The parties acknowledge that the Services are provided “AS IS”. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH HEREIN, CORONA AND ITS SUPPLIERS AND LICENSORS HEREBY DISCLAIM ALL (AND HAVE NOT AUTHORIZED ANYONE TO MAKE ANY) WARRANTIES RELATING TO THE SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER CORONA NOR ITS SUPPLIERS OR LICENSORS MAKES ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR THAT THE SERVICES WILL BE ERROR-FREE OR AVAILABLE AT ANY GIVEN TIME.
8. Limitation of Remedies and Damages. NEITHER CORONA NOR ITS SUPPLIERS OR LICENSORS SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, (C) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, (D) FOR AMOUNTS THAT, IN THE AGGREGATE, EXCEED THE FEES PAID TO CORONA HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, OR $100, WHICHEVER IS GREATER, OR (E) FOR ANY MATTER BEYOND CORONA’S OR ITS SUPPLIERS’ OR LICENSORS’ REASONABLE CONTROL, IN EACH CASE EVEN IF CORONA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Third Party Materials. Customer acknowledges and agrees that: (i) the Services may incorporate certain information, data and materials received from Corona’s third party licensors and data vendors, including without limitation those materials which are set forth at http://coronalabs.com/third-party-materials/ (“Third Party Materials”); (ii) Third Party Materials may only be used in conjunction with the Service; and (iii) Customer’s use of Third Party Materials shall be subject to any separate license terms which are applicable to such Third Party Materials. Corona does not provide support for Third Party Materials.
10. Term; Termination. This Agreement shall commence upon Customer’s first use of the Services. If Customer has selected a free evaluation license to the Services, this Agreement shall terminate after the applicable trial period for the Services (as set forth on the Services) has expired (the “Trial Period”), unless Customer orders and pays for a paid subscription to the Services. The ordering of paid Services shall terminate the Trial Period, and thereafter this Agreement shall continue for the applicable subscription period set forth on the Services during the ordering process (the “Initial Term”) unless earlier terminated in accordance herewith. For any Services which are subject to renewal, following the Initial Term, subject to Customer’s payment of all applicable fees, this Agreement may be renewed for successive renewal periods as set forth on the Services (each, a “Renewal Term”, and together with the Trial Period (if any) and the Initial Term, the “Term”). Notwithstanding anything in this Agreement to the contrary, Corona’s obligations under Section 2 (“Security; Support”) of this Agreement shall not apply during the Trial Period. If Customer is in material breach of this Agreement, Corona reserves the right to immediately suspend access to the Services until such breach is materially cured. Without limiting the foregoing, either party may terminate this Agreement by written notice to the other party in the event that such other party materially breaches this Agreement and does not materially cure such breach within thirty (30) days of such notice. In addition, Corona may terminate this Agreement during the Trial Period upon thirty (30) days’ written notice to Customer. Upon termination, the rights and licenses granted to Customer hereunder shall terminate and Customer shall immediately return anything Customer has obtained in connection with the Services, together with any and all documents, notes and other materials respecting the Services to Corona, including, without limitation, all Proprietary Information and all copies and extracts of the foregoing, but the terms of this Agreement will otherwise remain in effect. The Services may incorporate functions that render the Services inoperable after the expiration of the Trial Period.
11. Miscellaneous. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer, and any such attempted assignment or transfer shall be void and without effect. Corona may freely assign its rights and obligations under this Agreement and transfer this Agreement without consent. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles. With respect to all disputes arising in relation to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in San Francisco, California. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorney's’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between the parties hereto and related to the subject matter hereof are expressly canceled. Customer shall indemnify and hold harmless Corona from any and all claims, liabilities, damages and/or costs (including but not limited to, reasonable attorneys’ fees) arising in connection with (i) any breach of this Agreement by Customer, (ii) Customer’s Applications, or (iii) Customer’s use of the Services. The parties agree that the provisions of this Agreement are intended for the benefit of, and are enforceable solely by, the other party. Nothing in this Agreement shall be construed as giving any other person any right, remedy or claim under or in respect of this Agreement or any provision hereof. Customer acknowledges and agrees that due to the unique nature of Corona’s Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Customer or third parties to unfairly compete with Corona resulting in irreparable harm to Corona, and therefore, that upon any such breach or threat thereof, Corona shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law (without the requirement of posting a bond). The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose.