Effective Date: April 1, 2020
Nami ML Inc. (“Nami,” “we,” “our,” or “us” in this Agreement) offers a suite of Services (defined below) for implementing, selling, analyzing, and improving in-app purchases and subscriptions for software applications via the Nami hosted services including the Nami application programming interfaces (the “Nami API”), Nami software development kits (the “Nami SDK”), Nami machine learning algorithms (the “Nami ML”), and dashboard (the “Nami Control Center”) or Nami Mobile Apps (“Nami Apps”) (collectively, the “Services”). Our Services are designed to help application publishers or application developers (each, a “Customer”) like you to maximize revenue derived from your software applications that interface with the Services (each, an “Application”), and enhance the experience of the end users of your Application (each, a “User”).
These Terms of Service (this “Agreement”) is a legally binding contract that includes the terms and conditions that we require Customers to accept as a condition of accessing our Services and using the Nami API and any documentation, materials, code, data, and other materials that we make available to you (collectively with the Services, the “Nami Platform”) to interface your Application with our Services. By accepting the terms of this Agreement, you acknowledge and agree that in connection with the Services, we will collect certain data pertaining to your Users (“User Data” as described in more detail below) which we will use to provide the Services.
1. Service Order, Account Registration and Fees
1.1. Service Orders. This Agreement governs your access to and use of the Services and the Nami Platform on a subscription basis. This Agreement governs all Services that you purchase from us when you submit (and we accept) service orders through the Nami Control Center (at https://app.namiml.com) or otherwise in written form signed by Nami and you (the “Service Orders”). The Service Orders include certain details that pertain to your subscription, including the term of your subscription (the “Subscription Term”), the fees for the Services (“Fees”) and certain limits that apply to your use of the Services (“Use Restrictions”). Once we accept a Services Order that you submit or sign a written Service Order, that Services Order is incorporated into and forms a part of this Agreement and is binding on both you and Nami. We agree to provide the Services described in that Service Order and you agree to use and access those Services and the Nami Platform in accordance with the terms of this Agreement.
1.2. Creating an Account. You must use a current Nami Customer account or create a new Nami Customer account in order to submit a Services Order or to access our Services and use the Nami Platform. You will be required to provide certain information about you, your company and your Application as part of the registration process to access the Nami Platform. You agree you will update your registration information so that it is always accurate. Nami may withhold approval of your Customer account if we determine, in our sole discretion, that your Application does not conform to our Application Standards Policy (accessible by following this link: https://www.namiml.com/legal/app-standards). It is your responsibility to keep your password, account credentials, and accounts secure. You should notify Nami immediately if any unauthorized use, or suspected unauthorized use, of your Nami Customer account occurs or if any other breach of security occurs. Nami is not liable for any loss or damage arising from your failure to comply with these requirements.
1.3. Fees and Payment Terms. You agree to pay Nami the Fees (for any of our fee-for-service subscriptions) that are set forth in the applicable Services Order and in accordance with the payment and other applicable terms that are also described in that Services Order. Nami reserves the right (in addition to any other rights or remedies we may have) to suspend your access to the Services if any Fees owed are more than thirty (30) days overdue until such amounts are paid in full, and we may charge interest for all outstanding balances at a rate equal to the lesser of one and one half percent (1½%) per month or the maximum rate permitted by applicable law, from the due date until paid.
2. Use of Nami Platform
2.1. Rights to Nami Platform. Subject to this Agreement, Nami grants you a limited, revocable, non-transferable, non-exclusive, right (without the right to sublicense) to access and use the Nami Platform and incorporate the Nami API software with your Application, solely to the extent necessary for you to create an Application that operates with the Services. This right is limited only to those Applications you identified and described when you registered your account with Nami and not to any other application that you have developed or may develop in the future. You may access and use the Nami Platform only as expressly permitted in this Agreement and by the means described in the documentation or instructions Nami provides.
2.2. API Calls. As part of the Use Restrictions listed in a Services Order, Nami may set limits on the number of API calls that you can make in the interest of service stability and creating the best experience for all users of the Services. If you exceed these limits, Nami may regulate your activity or terminate your access to the Nami API in Nami’s sole discretion. You agree to the Use Restrictions and will not attempt to circumvent such limitations.
2.3. Open Source Software. Some of the software required by or included with the Nami API may be offered under an open source license and, if so, those licenses will be identified or reproduced in a “LICENSE.txt” file that accompanies the Nami Platform. Open source software licenses constitute separate written agreements between the Customer of the open source software and its users. To the limited extent the open source software license expressly supersedes this Agreement, the open source license instead sets forth your agreement with Nami for the applicable open source software.
2.4. Compliance with Laws. You will use the Nami Platform only as permitted by and in accordance with all applicable local, state, national, and international laws, rules and regulations, including without limitation laws regarding the import or export of data or software and data privacy (“Applicable Laws”). You will not use the Nami Platform to encourage or promote illegal activity. You will not knowingly enable end users to violate Applicable Laws or this Agreement.
3. Application Standards
You agree to provide accurate and up-to-date information about your Application during the account registration and Service Order process. Nami requires that all Applications that use the Services and interface with the Nami Platform maintain certain standards of quality and professionalism at all times, which includes your adherence with the “Restrictions” and “Security and Privacy” requirements set forth below and compliance with our Application Standards Policy as well as the terms and guidelines that apply to any commercial distribution platform on which your Application is distributed, including the Apple App Store Review Guidelines, accessible at: https://developer.apple.com/app-store/review/guidelines/#privacy (the “App Store Guidelines”). Nami reserves the right to monitor and investigate any Application for compliance with these requirements and the other terms of this Agreement. Such investigations may include Nami accessing and using your Application, for example to identify stability or security issues that could affect the operation of the Nami Platform or its customers. You consent to and agree not to interfere with any such investigation. Nami may immediately suspend or terminate access to the Services or to the Nami Platform by you or your Application without notice if we determine, in our sole discretion, that you are causing stability or security issues or are otherwise in violation of this Agreement.
Your Application will not, nor will you use the Nami Platform to:
5. Security and Privacy
5.1. Collection and Use of Data. Nami collects two distinct types of Data.
5.1.1 “Customer Data” means any technical logs, account and login data, data and learnings about Customer’s use of Services. These data are related to how Nami customers are using the platform and integrating Nami products into their Applications. Customer Data may include information such as IP address, account information such as company, email address, or name, web analytics and tracking, screen interaction, and application screenshots and structure data. These data are used to help Customers onboard the Nami products into their Applications, provide the Services, and enhance the Nami Platform and Services for all of our customers.
5.1.2 “User Data” means any and all technical information, device information, Application usage information, or other information derived from use of the Nami SDK in the Application, that we or you collect via the Nami Platform, or that you collect via a User’s interaction with an Application. These data are about or originate from Users of your Application. User Data may include a unique identifier, behavioral data on how Users are interacting with an application, purchase history information, device and OS information, and language and country settings. User Data does not include device identifiers, email addresses, names, or IP addresses.
5.2. User Tokens. We may place a small data packet resident on a User’s mobile or other devices used to access your Application (a “User Token”), which will include certain information that is accessed and used by the Nami Platform to provide some of the functionality of the Services. The User Token will not include any PII and will not be used to deliver any targeted or behavioral advertising.
5.3. User Consents. You agree that to obtain all required consents from Users in connection with all uses of User Data and the placement of the User Token on User devices, which consents will be compliant with Applicable Data Privacy Laws and the applicable provisions of the App Store Guidelines. Without limiting the foregoing, prior to your use of the Services, you must provide adequate and accurate notice of what User Data is collected by the Application and how it will be used and/or shared, including that such User Data will be shared with Nami as part of the Services. If any individual (including a User) requests of you to have any User Data removed or deleted, or requests a copy of any User Data, or performs an action through your Application that reflects this intent, you agree to promptly inform Nami of such request. Nami agrees to honor that request and to remove or delete such User Data from our servers to the maximum extent possible while still maintaining the integrity of any underlying systems and complying with all Applicable Laws, or we will provide a copy of any User Data associated with your Application that we have on our servers if requested by the User.
5.5. Security. We both agree to use all reasonable efforts to protect all PII and User Data from unauthorized access or use in accordance with all Applicable Data Privacy Laws. In the event the systems or infrastructure of either party that are used for storage, processing or hosting User Data are breached or compromised, or if User Data is inadvertently exposed to non-authorized third parties, the affected party will notify the other party promptly of such a breach or exposure and provide all available information, including root cause analysis, remediation steps and compensating controls that are reasonably necessary to ensure such a breach does not occur in the future. You are responsible for providing customer notification under the state breach notification statutes or any other Applicable Privacy Laws.
6. Ownership and License
6.1. Nami Platform and Customer Data. By using the Nami Platform, you do not acquire ownership of any rights in any of the Nami Platform, the Services, or any data, content or information that is transmitted or accessed through the Nami API. The Nami Platform and Services are protected by United States intellectual property laws, including without limitation copyright laws, and international treaty provisions. You will not remove or alter any proprietary notices or marks on the Nami Platform. You will not reverse engineer or attempt to extract the source code from the Nami Platform, Services, Nami API, Nami SDK, or any related software, except to the extent that this restriction is expressly prohibited by Applicable Law and then in such case, the information derived will be maintained in strict confidence. You also will not sublicense, lease, rent, loan, distribute, sell, transfer or make available any part of the Nami Platform to any third party except as specifically permitted by this Agreement. Nami Platform is licensed and not sold. Nami reserves all rights not expressly granted in this Agreement.
6.3. Updates to the Nami API. We reserve the right to modify or update the Nami Platform and Services at any time, for any reason, and without notice to you, though we will try to provide as much prior notice as possible. If Nami makes updates, revisions or in any way modifies the Nami API, you agree to make changes to your Application to ensure continued access to the Services. We may add or remove functionalities or features at our discretion, and we do not guarantee that your Application will function with any future or modified versions of any Nami Platform or the Services. Nami may disable access to the Services if your Application is not updated in response to changes in the Nami API.
7. Branding and Attribution
7.1. Attribution and Promotion. Except where expressly stated, this Agreement does not grant either party any right, title or interest in or to the other party’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features (collectively, “Branding”). You acknowledge and agree that the Services may display Nami Branding as an attribution of the use of and the integration of your Application with the Nami Services. You agree not to remove or interfere with the display of Nami Branding for such purposes. Nami hereby grants to you a limited, revocable, nontransferable, nonsublicenseable, nonexclusive license during the term to display Nami's Branding for the purpose of displaying such attribution, provided that Nami must provide prior written approval of any other use of the Nami Branding. You will not otherwise make any statement regarding your use of the Nami Developer Toolkit that suggests partnership with, sponsorship by or endorsement by Nami without Nami's prior written approval.
7.2. Promotional and Marketing Use. In the course of promoting, marketing, or demonstrating the Nami Platform and/or the Nami Services, Nami may produce, distribute and use depictions, screen information, video, icons, or other Application Data, and may use your company or product name and logos. You hereby grant Nami all necessary rights for these purposes.
8.1. Term. This Agreement, and your right to use the Services and the Platform, will continue for the Subscription Term listed in an applicable Services Order. Unless stated otherwise in the Service Order, each Subscription Term shall automatically renew for the same period as the then-current Subscription Term (e.g., monthly Paid Plans will automatically roll over month-to-month and annual Paid Plans will automatically renew for additional 12-month periods).
8.2. Termination. You may cancel your subscription and terminate this Agreement at any time by providing us with written notice and, subject to the post-termination obligations and the surviving provisions set below, this Agreement will automatically terminate within five (5) business days after we have received your notice. Without limiting any other right or remedy of Nami hereunder, if you are in breach of this Agreement, Nami will have the right to immediately terminate this Agreement and/or suspend or terminate access to the Services or the Nami Platform by you or your Application effective upon written notice to you without liability You will not be entitled to a refund of any Fees paid prior to termination.
8.3. Your Post-Termination Obligations. Upon any termination or expiration of this Agreement or discontinuation of your access to the Nami Platform, you must immediately cease all use of any Nami Platform, Nami Branding and any confidential information provided by Nami or obtained through use of the Nami API, and delete all copies thereof. Upon Nami’s request, you will provide Nami with written confirmation that you have complied with the foregoing requirements.
8.4. Surviving Provisions. Upon any termination or expiration of this Agreement, those terms that by their nature are intended to continue indefinitely will continue to apply, including but not limited to: Articles 5, 6, 8, 10, and 11.
9. Service Level Agreement
Depending on the type of Services and your subscription level, Nami may provide you with a written Service Level Agreement which will be provided to you at the time of your Service Order, and will be subject to all limitations set forth in the Service Level Agreement. Your sole and exclusive remedy and our entire liability for any failure of the Services to satisfy the Service Level Agreement will be those remedies set forth in the Service Level Agreement.
10.1. Disclaimers. Except for those obligations included in any Service Level Agreement expressly made available to you by Nami as set forth in Section 9, neither Nami nor its licensors or suppliers makes any other promises, guarantees or warranties of any kind about the Nami Platform or the Nami Services, including any commitments about the quality of the Nami Platform, or the reliability or availability of the Services. To the maximum extent permitted by law, Nami expressly disclaims all other warranties and conditions of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
10.2. Limitation of Liability. To the maximum extent permitted by law, Nami and its licensors, and suppliers will not be liable for any lost profits, revenues, or data, financial losses or any indirect, special, consequential, exemplary, or punitive damages of any kind. To the maximum extent permitted by law, the total liability of Nami and its licensors and suppliers for any claim under this Agreement, including for any warranties that may not legally be excluded, is limited to the Fees you paid us to use the Nami Platform and Services during the twelve months prior to the event giving rise to the liability.
10.3 Indemnification. You agree to hold harmless and indemnify Nami and its affiliates, and their respective managers, directors, officers, agents, and employees from and against any third party claim, suit or cause of action and any and all resulting losses, damages (of every kind and nature, actual and consequential), judgments handed down in any jurisdiction, litigation costs and attorneys' fees arising from or in any way related to:
11. Other Legal Terms and Conditions
11.1. Confidential Information. Our communications to you and the Nami Platform may contain Nami confidential information. If you receive any materials or communications that are marked confidential or that would normally be considered confidential under the circumstances, then you will not disclose such materials or communications to any third party without Nami's prior written consent. Nami confidential information does not include information that you already rightfully knew, that becomes public through no fault of your own, or that was lawfully given to you by a third party. You may disclose Nami confidential information when compelled to do so by law if you provide us reasonable prior notice, unless a court orders that we not receive notice.
11.2. General Legal Terms. This Agreement will be governed by the laws of the State of Colorado without giving effect to principles of conflict of laws. Each party agrees to submit to jurisdiction in Colorado. You may not assign or transfer this Agreement or any of its rights under the Agreement to any third party without the Nami’s prior written consent, which consent will not be unreasonably withheld or delayed, except for an assignment to any successor to all of your assets or business (for example, by a merger or sale of all of your business assets). Any assignment in violation of the foregoing shall be void and of no force or effect. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will continue in full force. The waiver by either party of a breach of any provision of this Agreement will not operate as a waiver of any other or subsequent breach. If the performance of this Agreement or any obligation hereunder, except payment obligations, is prevented, restricted or interfered with by any condition beyond the reasonable control of the affected party, the party so affected will be excused from such performance to the extent of such prevention, restriction or interference. The parties to this Agreement are independent contractors; no agency, partnership, joint venture or employee-employer relationship is created by this Agreement. Any notices sent to you by Nami may be sent to the email address specified by you at the time you registered your Customer account with us. Addresses to Nami must be sent:
Nami ML Inc.
1630 Welton Street, Suite 708
Denver, CO 80202 USA
+1 321 754 6264
Such notice will be deemed given in the following circumstances: if sent by personal delivery, upon such delivery; if sent by electronic mail, upon confirmation of delivery; if sent by national carrier, 2 days after date of delivery to such carrier; or if sent by certified or registered mail, postage prepaid, 5 days after the date of mailing. This Agreement sets forth the entire agreement of the parties and supersedes any other communications between the parties as to the subject matter of this Agreement. It may be changed only by a writing signed by both parties, except as set forth below.
Nami is a registered trademark of Nami ML Inc.