Last updated: 19/08/2020
Mobile Action, Inc. (“Mobile Action,” “we,” “us,” or “our”) owns and operates the website located at 595 Pacific Avenue, Floor 4 San Francisco, CA 94133 and www.mobileaction.co (the “Site”). Please read these Terms of Service carefully. These Terms of Service state the terms and conditions under which you may use our services which are available through the Site (the “Services”). By replying “I ACCEPT” you(“you”, “user”, “client” or, “end user”) acknowledge that you have read, understood, and agree to be legally bound by these Terms of Service and you represent and warrant that you are of the legal age of majority in the jurisdiction(s) or older in which You reside (at least 18 years of age in many countries). If you are accepting these Terms of Service on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to the terms and conditions set forth herein. If you do not have such authority, or if you do not agree to any of these terms, then you are not permitted to use the Services.
You are responsible for checking these terms periodically for updates.. When such a change is made, we will update the “Last Updated” date at the end of this document.
The section below titled “Miscellaneous” contains a binding arbitration agreement and class action waiver.
They affect your legal rights. Please read them.
Through the Site, we offer solutions for driving organic app growth and analyzing app marketplace intelligence. The Services are offered to you on a subscription basis (“Subscription”). The features and functionality of the Services available to you will be based on the Subscription package you choose. Technical support will be provided to you based on the Subscription package you choose. All technical support will be available via email for all paid-up Subscriptions, as well as by phone for Premium and Enterprise Subscriptions.
Subject to the terms and conditions of these Terms of Service, you are granted a non-exclusive, non-transferable license to access and use the Services. You will not (and will not permit any third party to): (i) share a login (a login may only be used by a single person); (ii) register of create accounts for “bots” or other automated uses; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, underlying ideas, algorithms, file formats, or interface protocols of the Services; (iv) copy, modify, adapt or translate the Services, or otherwise make any use, resell, distribute or sublicense the Services other than to the extent permitted here; (v) make the Services available on a “service bureau” basis or allow any third parties to use the Services, other than your employees acting on your behalf, without Mobile Action’s prior written consent; (vi) remove or modify any proprietary marking or restrictive legends placed on the Services; (vii) introduce into the Services any virus, worm, “black door,” Trojan Horse, or similar harmful code; or (viii) use the Services in violation of any applicable law or regulation. If you violate this section, we reserve the right in our sole discretion to immediately deny you access to the Services, or any portion of thereof, without notice.
You are welcome to browse the Site as a visitor without providing any information to us. If you would like to use the Services, you will need to register as a user by creating an account. During the registration process, you will have to provide your name, company name, email address, and any other information requested during the registration process. You will also have to create a user name and password for your account. You represent and warrant that all registration information you submit is truthful and accurate and you will maintain the accuracy of such information. You are solely responsible for the confidentiality of your user account, as well as for its use and misuse. You will promptly inform us of any need to deactivate a user name or password. We reserve the right to delete or change your user name and/or password at any time and for any reason.
You acknowledge and agree that Your use of the Services will require MobileAction to send email communications to You at the email address that You provide upon registration. You agree that MobileAction may send to You, whether by email or otherwise, communications, including but not limited to notifications and invoices (or other materials relating billing), in the English language.
You agree that MobileAction may send You marketing communications regarding the Services.
We reserve the right to refuse, suspend, or terminate your registration for any reason and in our sole discretion.
Your initial Subscription to the Services is provided as a free trial Subscription that will last for a period of seven (7) days (the “Trial Period”). Upon expiration of the Trial Period, the Subscription will automatically start, subject to payment of applicable Subscription fees as set forth below. You may cancel your Subscription at any time during the Trial Period by emailing us at [email protected] and the cancellation will take effect within twenty-four (24) hours.
MobileAction reserves the right to terminate free trial period, reduce / change their scope, the usage thereof, or discontinue the offering of Free Trial entirely, at the sole discretion of MobileAction at any time. MobileAction assumes no liability for said termination, reduction/change or discontinuance towards You or third parties. Mobileaction may terminate, reduce, suspend, change the scope/content of, or discontinue Free Trial period.
A valid credit card is required for paying accounts and a credit card validation is required for free trial accounts, but will not be charged until immediately after the expiration of the trial period.
You agree to pay any applicable Subscription fees made known to you during registration. All fees paid to Mobile Action are nonrefundable. We may use a third party service provider (“Third Party Service Provider”) to process payment of such fees. You warrant and represent to such Third Party Service Provider that you are the valid owner or an authorized user, of the credit card you provide to process your payment, and that all information is accurate. We reserve the right to change any of the fees that we charge, or to institute new or additional fees, at any time upon notice to you.
All fees are in USD, exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only VAT when a valid number is provided.
Mobileaction will invoice You based on actual delivery during the applicable invoice period, with payment due net 15 (fifteen) days from the invoice date. Late payments shall bear interest at the rate of one percent (1%) per month or the highest rate permitted by law, whichever is less. Non-late payments shall not bear interest.
In the event that You fail to make timely payment or otherwise breach these Terms of Service or any warranties set forth herein, You will be responsible for all expenses (including attorneys’ fees and costs) incurred by MobileAction in collecting such amounts.
Pay-per-Use: If billing is carried out on a pay-per-use basis (e.g. billing on App and/ or Key-Word and/ or Ad Spend basis), the amount due will be calculated for each month according to the agreed pricing scheme. The amount due will be calculated on the basis of that the day of said month, which your Usage of Services was the maximum total.
Late payment: If you default on a due payment MobileAction can, without affecting its other rights, postpone the fulfillment of its own obligation until completion of this payment and claim an appropriate extension to the performance deadline.
It is important to note that when you sign up to use the Services, your Subscription will automatically renew until you cancel it. You may cancel at any time by notifying us in writing no later than fifteen (15) days before the next upcoming renewal, and the cancellation will take effect the following month subject to the terms and conditions set forth in the Section titled “Effect of Termination.” Again, if you do not cancel, then your Subscription will automatically renew under the same Subscription.
Disputes: You agree to notify MobileAction via email of any invoice dispute within thirty (30) days from the date of receipt of the invoice (the “Invoice Dispute Period”). Invoice disputes shall be emailed to [email protected] and shall include detailed reason(s) for the dispute. To the fullest extent permitted by law, you waive all claims relating to the Services and fees unless claimed or asserted within the Invoice Dispute Period. For the avoidance of doubt, if you fail to dispute an invoice within the Invoice Dispute Period, you acknowledge that the invoice will be considered payable in full and “as is.” In the event that you contract with a third party to process invoices on Your behalf, you will use commercially reasonable efforts to provide such third party the requisite information and/or authorization to facilitate timely payment to MobileAction. Furthermore, you agree that your obligation to make timely payments and/or to notify MobileAction of invoice disputes in a timely manner will neither be lessened nor excused due to the actions of such third party.
Your use of the Site and/or the Services may involve the transmission to us of certain personally-identifiable information. Our policies with respect to the collection and use of such personally-identifiable information are governed according to our Privacy Policy (located below), which is hereby incorporated by reference in its entirety.
Any content that we provide or make available in or through the Services, including any estimates and reports provided through the Services and any third-party User Submissions (“Content”), are our intellectual property and copyrighted work or that of third-party authors.
You may not use any of our trademarks (including our brands and logos) or any links to our Sites in any way without our express permission.
You authorize MobileAction to potentially list your company, your User Content, or your intellectual property (including but not limited to your logos or trademarks) for promotional purposes.
You agree not to copy, reproduce, sell, transfer, modify, publish, distribute, display, prepare derivative works from, reverse engineer, disassemble or decompile or exploit any portion of the Services, the MobileAction Content.
As between Mobile Action and you, Mobile Action shall own all right, title, and interest in and to (i) the Services including, without limitation, all source code, object code, operating instructions, and interfaces developed for or relating to the same; (ii) all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, improvements, and derivative works of the foregoing, and all intellectual property rights therein; and (iii) any other materials available on the Site and/or the Services that are provided by or on behalf of Mobile Action and all intellectual property rights therein (collectively, the “Mobile Action Intellectual Property”). Except as expressly permitted in these Terms of Service, you have no rights in or to the Mobile Action Intellectual Property.
If you believe the Site contains any content that infringes your copyright, please contact our Copyright Agent, as detailed below, with the following information:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; A description of the copyrighted work that you claim has been infringed; A description of where the material that you claim is infringing is located on the Site; Your address, telephone number and email address; A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or duly authorized to act on the copyright owner’s behalf.
To contact our DMCA (Digital Millennium Copyright Act) Agent by regular mail, please write to: Copyright Agent Mobile Action, Inc. 595 Pacific Avenue, Floor 4, San Francisco, CA 94133
You acknowledge and agree that Mobile Action will access and download the data you store (i) in your user account (“User Stored Data”); and (ii) on a third party service to which you facilitate Mobile Action’s access via application programming interface (API) or other means (“Third Party Stored Data”), all subject to such third party’s terms of service governing this data, if applicable. User Stored Data and Third Party Stored Data shall be collectively referred to herein as “User Data.” You retain all copyrights and other intellectual property rights in and to your User Data. However, you hereby grant us an irrevocable, non-exclusive, worldwide, royalty-free, sublicensable, transferable license to use your User Data as reasonably necessary for us to provide the Services.
In the course of using the Services, you may submit to us or we may gather on your behalf data, information or material (“User Data”) from your third-party accounts (“Developer Accounts”) at third-party sites (“Third-Party Sites”), including but not limited to developer accounts on iTunes, Apple Store, Google Play, Amazon App Store, ad network accounts, and others that the Services may allow you to connect to, that store such User Data.
By accessing and/or using the Services, you hereby agree that:
You will not use the Services for any unlawful purpose; You will not “stalk” or otherwise harass another user of the Services or any other person; You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; and You will not interfere with or attempt to interrupt the proper operation of the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, or files related to the Services through hacking, password or data mining, or any other means.
By submitting any unsolicited information and materials, including comments, ideas, questions, designs, and other similar communications (collectively, “Unsolicited Information”) to us, you agree to be bound by the following terms and conditions. If you do not agree with these terms and conditions, you should not provide us with any Unsolicited Information. All Unsolicited Information will be considered NON-CONFIDENTIAL and NON-PROPRIETARY. We, or any of our affiliates, may use such communication or material for any purpose whatsoever, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast, and further posting. Further, we and our affiliates are free to use any ideas, concepts, know-how, or techniques contained in any communication or material you send to us for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products. By submitting any Unsolicited Information, you are granting us a perpetual, royalty-free and irrevocable right and license to use, reproduce, modify, adapt, publish, translate, distribute, transmit, publicly display, publicly perform, sublicense, create derivative works from, transfer and sell such Unsolicited Information and to use your name and other identifying information in connection with such Unsolicited Information.
Each party shall protect and preserve the Confidential Information (as defined below) of the other party as confidential, using no less care than that with which it protects and preserves its own highly confidential and proprietary information (but in no event less than a reasonable degree of care), and shall not use the Confidential Information for any purpose except as necessary to perform its obligations hereunder or as otherwise permitted hereunder. The receiving party may disclose, distribute or disseminate the other party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, or agents provided that the receiving party reasonably believes that those individuals have a need to know and such individuals are bound by confidentiality obligations at least as restrictive as those contained herein. Except as expressly set forth herein, the receiving party shall not disclose, distribute or disseminate the other party’s Confidential Information to any third party without the prior written consent of such other party. In the event the receiving party becomes or may become legally compelled to disclose any of the other party’s Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other process or otherwise), the receiving party shall provide the other party with prompt prior written notice of such requirement so that such other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. For purposes of these Terms of Service, Mobile Action’s Confidential Information means MobileAction intellectual property, including all codes, tools, and technology used in connection with the Services, the Properties and the Services, Reporting Metrics, nonpublic product plans, marketing plans, components and other information and materials related thereto, and, your Confidential Information means your User Data.
THE SITE, THE SERVICES AND ALL CONTENT, FUNCTIONS AND MATERIALS MADE AVAILABLE TO YOU THROUGH THE SITE, ARE PROVIDED “AS IS,” “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE MAY USE THIRD PARTY VENDORS AND HOSTING PARTNERS TO PROVIDE THE NECESSARY HARDWARE, SOFTWARE, NETWORKING, STORAGE, AND RELATED TECHNOLOGY REQUIRED TO PROVIDE YOU WITH THE SERVICES. NONE OF MOBILE ACTION, ITS AFFILIATES, SUBSIDIARIES, OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE “MOBILE ACTION PARTIES”) WARRANT THAT ANY OF THE SITE, THE SERVICES AND ANY CONTENT, FUNCTIONS AND MATERIALS MADE AVAILABLE TO YOU THROUGH THE SITE WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. NONE OF THE MOBILE ACTION PARTIES SHALL BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF ANY OF THE FOREGOING. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES.
IN NO EVENT SHALL ANY OF THE MOBILE ACTION PARTIES BE LIABLE FOR SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, REVENUES OR SAVINGS, EVEN IF A MOBILE ACTION PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF THE MOBILE ACTION PARTIES FOR DIRECT DAMAGES ARISING UNDER THESE TERMS OF SERVICE OR RELATING THERETO, EXCEED, THE TOTAL FEES PAID BY YOU IN THE ONE (1) MONTH IMMEDIATELY PRECEDING SUCH CLAIM. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR NEGLIGENCE, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, IN SUCH JURISDICTIONS THE MOBILE ACTION PARTIES’ LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW OR REGULATION.
The validity, construction and performance of this Agreement and the legal relations among the parties to this Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding that body of law applicable to choice of law.
The Site and the Services may contain links to third-party websites (“External Sites”), but Mobile Action does not endorse and is not responsible for the content of any such External Sites. Please refer to the terms of use and privacy policies of the External Sites for more information.
MobileAction is not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites.
You agree to defend, indemnify, and hold the Mobile Action Parties harmless from and against any and all claims, actions, or demands and relating costs, damages and liability (including, without limitation, reasonable attorneys’ fees) arising or resulting from: (i) your breach of these Terms of Service; (ii) your access to, use, or misuse of the Site or the Services; (iii) any User Data provided through your account; and (iv) your violation of any third-party right, including without limitation any intellectual property, or privacy right.
We make no claims concerning whether the Site, the Services, or the User Data may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Site, the Services or the User Data from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
You are responsible for all activity occurring under any Authorized User Accounts and you shall abide by all applicable local, state, federal and foreign laws, treaties and regulations in connection with your access to and use of the Software, including those laws related to data privacy, and the transmission of technical or personal data. You shall not use the Software for any unlawful purpose, and you will not export, directly or indirectly, the Software to any country for which the United States requires any export license or other governmental approval without first obtaining such license or approval.
(a) Term. These Terms of Service shall be effective from the time you click “I Agree” and shall continue until terminated by either party as set forth herein (“Term”).
(b) Termination. We may terminate these Terms of Service, without penalty or liability, at any time, for any or no reason, upon thirty (30) days written notice to you. We may terminate and/or suspend your registration or your use of the Services immediately if you violate the terms and conditions of these Terms of Service.
(c) Effect of Termination. Upon termination of these Terms of Service or Subscription: (i) all rights and licenses granted hereunder will immediately cease; (ii) you will immediately cease all use and access of the Services; (iii) you will have fifteen (15) days to retrieve your User Data; and (iv) you shall immediately pay Mobile Action all fees dues until the date of termination. YOU AGREE THAT MOBILE ACTION WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SERVICES IN ACCORDANCE WITH THESE TERMS OF SERVICE.
In the event that any portion of these Terms of Service is held to be invalid or unenforceable, then such portion shall be construed in accordance with the applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of these Terms of Service shall remain in full force and effect. This section, the section entitled Mobile Action Intellectual Property, Indemnification, Mobile Action Disclaimers and Limitation of Liability and Effect of Termination shall survive the termination of these Terms of Service. You may not assign these Terms of Service. No waiver shall be effective unless in writing. Neither the course of conduct between parties nor trade practice shall act to modify any provision of these Terms of Service. These Terms of Service shall be governed by and construed in accordance with the laws of the State of California. In the event of a dispute arising under or relating to this Agreement (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. Nothing in this Agreement will prevent Mobile Action from seeking injunctive relief in any court of competent jurisdiction as necessary to protect Mobile Action’s proprietary interests.
You agree that any arbitration or proceeding shall be limited to the Dispute between Mobile Action and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST MOBILE ACTION ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
These Terms of Service contain the entire agreement of the parties concerning its subject matter, and supersede all existing agreements and all other oral, written or other communication between the parties concerning the subject matter.
You consent and agree that your email response of the “I Accept” constitutes as your electronic signature, acceptance, and agreement under the United States federal E-SIGN legislation and that such electronic signature will meet the requirements of an original signature as if actually signed by you in writing. Further, you agree that no certification authority or other third-party verification is necessary to the enforceability of your signature. At our request, any electronically signed document must be re-executed in original form by you. No party hereto may raise the use of an electronic signature as a defense to the enforcement of these Terms of Service or any amendment or other document executed in compliance with these Terms of Service.
You have the option to connect your App Store Connect and Google Play Developer accounts (or other similar accounts from other App distributors or marketplaces) with the Software, in order to use the Software to analyze the information about your Apps stored in the Connected Account. By doing so, you understand and agree that Mobile Action will receive certain information about you and your Apps from the Connected Account. (“Connected Account Data”). Notwithstanding anything to the contrary herein, you hereby grant Mobile Action (and our successors and assigns) a non-exclusive, world-wide, perpetual, royalty-free, irrevocable, sublicensable and transferable license to use your Connected Account Data to produce anonymized data for the purpose of (1) further developing and optimizing the Software, (2) the development and sale of new products, and (3) expanding the features and functionality of existing products.
If you have any questions about these terms, please get in touch with us.
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