Joshfire Factory Terms of Services
1. Whereas :
1.1 Joshfire is a French société par actions simplifiée, with its registered office located at 29 Rue des Vinaigriers 75010 Paris, registered in the Paris Trade and Companies Register under number B 529 039 117, represented by Mr. Michel Levy Provencal.
The FACTORY provides you, as User, with a marketplace of Templates developed by Joshfire or a community of developers.
1.2 Templates may have been developed using one or more open-source programs.
1.3 For Templates developed using open-source programs, legal terms of related applicable license are available in a dedicated library, on the Factory, at the following address: http://factory.joshfire.com/licenselist.
1.4 Effective upon acceptance of this Agreement, we hereby grant You, the right to use the FACTORY to develop a Cross-Device App by :
- selecting one or more application models in the Templates marketplace;
- selecting data sources (using the rich data connector library available on the platform) to feed the Cross-Device App with images, videos, sounds, texts, calendars, location-based contents, or simple databases;
- adding features (hereafter the add-ons) such as analytics plugins, advertising modules or CSS tools; and
- adjusting the features.
1.5 Upon acceptance of the Agreement, You are entitled to:
- access all services provided by the Factory and connected to the World Wide Web via the internet;
- use the Cross-Device App in compliance with the terms and conditions set forth herein;
- use all services related to the Cross-Device App, such as hosting, support or maintenance.
2. The following terms of services, posted at http://factory.joshfire.com/tos, shall govern all use of the Joshfire Factory platform and all content, services and products available on the Factory, without any restriction or modification.
3. User’s liability
You represent and warrant to Joshfire that:
- 3.1 for all content of the cross-device app, including selected add-ons and additional functionalities, You either own all content inserted in or displayed by the cross-device app or have permission from the content owner for such use;
- You hold all rights and authorizations relating to, wholly or in part, any software, database, information data, text, software, music, sound, image, photograph, logo, drawing, video, goods, product, service, signs, signals, writings, or message of any or all nature that is used, published, transmitted, or made available to the public via the cross-device app;
- You hold all rights and authorizations relating to any intellectual property rights, such as trademarks, patents, registered designs, or copyright, or relating to non-trading companies for the collection and apportionment of copyright and similar rights, which allows You to be bound by the provisions of this Agreement;
- You are fully liable for the content published on the cross-device app which includes, but is not limited to, all information data, text, software, music, sound, image, photograph, logo, drawing, video, goods, product, service, signs, signals, writings, or message of any or all nature that is published, transmitted, or made available to the public via the cross-device app including in the event of a license to use, whether or not You are the author or responsible for its being made available online;
- the cross-device app, selected add-ons and additional functionalities comply at all times with all applicable criminal, civil and statutory laws and regulations, including those in any jurisdiction in which the cross-device app may be offered or made available;
- 3.2 the cross-device app before and after being deployed, neither does not, wholly or in part, violate any applicable law, including public order, morality or accepted standards of behavior or affect the rights of others;
- you are in any way liable in terms of morality, compliance with laws, regulations and accepted standards of behavior, in particular for the protection of minors, human rights and dignity, privacy, customer protection, data protection, unfair competition practices as regards selected add-ons or any other use and content of the cross-device app;
- the cross-device app will not, in any way, favor any provocation of, or incitation to commit crimes, misdemeanors, and in particular crimes against humanity, racial hatred, violence, suicide, incitation to the use, fabrication, or distribution of illegal or unlawful substances, incitation to acts of terrorism.
3.3 For the purpose of the Agreement, before and after deployment, You grant Joshfire a worldwide, royalty-free and non-exclusive license(s) to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display all content - in whole or in part - you submit or make available to JOSHFIRE or on the Cross-Device App, in particular:
- photos, graphics, audio or video you submit or make available for inclusion
- content other than photos, graphics, audio or video you submit or make available for inclusion,
These licenses exist for as long as long as You elect to include such content, or use it in connection with the FACTORY, and for the length of protection given by law.
3.4 You agree to comply with all applicable privacy laws and regulations as well as any applicable terms and conditions, including but not limited to third parties’ notice or consent requirements. You agree that, for any form of user’s data collection, or image, picture or voice capture or recording, You will provide clear and complete information to end-users regarding Your collection, use and disclosure of end-user’s data. You agree to take appropriate steps to protect such data from unauthorized use, disclosure or access by third parties, and to promptly cease all use if a user ceases to consent or affirmatively revokes consent for Your collection, use or disclosure of his or her user or system data.
3.5 You will fully indemnify JOSHFIRE against all costs, expenses, liabilities, losses, damages and judgments that JOSHFIRE may incur or be subject to as a result of any of the following: User’s misuse of the FACTORY or the Cross-Device App, User’s breach of this Agreement, User’s negligence or other act of default; activities of third parties conducted on User’s Cross-Device App (in particular, using facilities such as blogs, forums, chats). You agree to defend, indemnify and hold Joshfire harmless against any third party action in connection with your selected Add-ons, Additional Functionalities or any content published on, or due to the usage of Your Cross-Device App.
3.6 Indemnification shall include, but not be limited to reasonable legal and consultant fees accrued after the termination of this Agreement and of the Factory terms of services. You represent and warrant to Joshfire that You will provide Joshfire upon demand any or all information and document related to the matter at stake.
3.7 You further agree to immediately notify JOSHFIRE in writing if You have any reason to believe that there has been any infringement of the rights on the Cross-Device App or the templates. JOSHFIRE shall decide in its sole discretion the course of action if any to take regarding such alleged infringement.
4. Acceptable Use Policy for the FACTORY, the Cross-Device App and the Templates
4.1 You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any purpose and in any way other than authorized herein, any portion of the FACTORY, use of the FACTORY, or access to the FACTORY.
4.2 You agree that You will only use the Joshfire Factory and any services associated to the FACTORY, including but not limited to the Templates and the Cross-Device App for the purposes and in the manner expressly permitted by this Agreement, and in accordance with all applicable laws and regulations. As defined in Article 13.4, applicable provisions include the documentation of the open-source programs used for the Templates, which is hereby incorporated by reference in this Agreement, and posted at http://factory.joshfire.com/licenselist.
4.3 Notwithstanding the above Article 4.1, Your authorized use of the Cross-Device App is restricted as follows :
- utilization of the Cross-Device App,
- modifications of the Cross-Device App,
- submission of your Cross-Device App for distribution to end-users, in particular through downloads from a platform or a marketplace.
4.4 You may, at any time and in your sole discretion, upgrade the Template used to develop Your Cross-Device App with new versions provided by the JOSHFIRE FACTORY.
4.5 You are not authorized to cease the Cross-Device App in any way, in particular for developing new applications.
4.6 You further acknowledge that:
- The Agreement does not provide You with any right to the Templates made available through the platform, including the Template(s) used to develop Your Cross-Device App;
- Even though You may have paid for some services related to a Template, You shall only use the Template to develop a unique Cross-Device App, and that Cross-Device App shall be developed through the Factory;
- Even though You may have paid for some services related to a Template, You will not sell, trade, or lend the Cross-Device App;
- Without prejudice to Articles 4.1 to 4.3, JOSHFIRE remains the sole holder of all rights -including but not limited to intellectual property- pertaining to the FACTORY.
4.7 You understand, acknowledge and agree that, as publisher of the Cross-Device App, You are fully liable for the content published on the Cross-Device App which includes, but is not limited to, all information data, text, software, music, sound, image, photograph, logo, drawing, video, goods, product, service, signs, signals, writings, or message of any or all nature that is published, transmitted, or made available to the public via the Cross-Device App. You represent and warrant that the Cross-Device App’s features and terms fully comply with applicable privacy laws and regulations, in particular with French laws pertaining to the protection of physical persons (among others, French laws on the protection of physical persons in connection with the processing of data of a personal nature --Law N° 78-17 of January 6, 1978 amended by Law N° 2004-801 of August 6, 2004).
You further represent and warrant that You will provide the Cross-Device App users with:
- appropriate identification information as publisher of the Cross-Device App;
- appropriate identification information of the hosting services provider;
- clear and complete information about users’ right to request that personal information they directly or indirectly supplied be communicated to them and demand the rectification thereof;
- clear and complete information regarding Your collection, use, and disclosure of end-user system data, in particular regarding the purpose of all data collection undertaken, prior consent requirements … pursuant to all applicable laws and regulations.
Furthermore, you agree to take appropriate steps to protect such data from unauthorized use, disclosure or access by third parties, and, if a user ceases to consent or affirmatively revokes consent for Your collection, use or disclosure of his or her user or system data, You promptly cease all such use;
- if any, detailed price information for the Cross-Device App such as premium features price, and associated regulatory charges and taxes.
In particular, You represent and warrant that:
- this information can be found on the Cross-Device App and inside it,
- accessing this information does not require the payment of any fees, royalties and/or sums to You or any third party;
- the information is available in an open standard, without any access or process restriction;
- the information is presented in a manner that no user of the Cross-Device App is left without seeing it.
You authorize Joshfire to communicate about the services provided to You in connection with the Cross-Device App. For that purpose, You hereby grant JOSHFIRE a worldwide, royalty-free and non-exclusive license to use, reproduce, publicly perform and publicly display all or part of the Cross-Device App, for the length of protection given by law.
6.1 For services offered by JOSHFIRE for the purposes of this Agreement, specific conditions (the “Financial Terms”) can be found at http://factory.joshfire.com/pricelist. You represent and warrant that You have read, understood and accepted all provisions set forth in the Financial Terms.
6.2 Applicable taxes or charges, if any, shall be calculated at the billing date.
6.3 For subscription-based services or products delivered by JOSHFIRE for a given period of time, the subscription shall be for an initial term. Payment shall be made at first order and at the end of each period for the subsequent term. If applicable, such subscription shall be automatically renewable from period to period thereafter, unless sooner terminated in accordance with this Agreement.
6.4 JOSHFIRE shall be entitled to full payment for any services ordered once performance thereof has started.
7. Limitation and exclusion of liability
7.1 Subject to the provisions of this Agreement, JOSHFIRE gives no warranty, express or implied, in connection with the FACTORY, the Templates or the Cross-Device App as to fitness for purpose, quality, dependability, sustainability, scalability, compatibility, non-infringement or merchantability.
You acknowledge and agree that JOSHFIRE does not guarantee You or any other person (including any Cross-Device App end-user) from any claim in connection with the technical programs or the legal rights concerned.
In particular, You acknowledge and agree that JOSHFIRE is not liable in regard to the fact that the Cross-Device App may not be compatible with the currently available commercial distribution platforms or marketplaces. To the extent You choose to publish the Cross Cross-Device App on platforms or marketplaces, You do so at Your own risk and are responsible for compliance with applicable laws, regulations and terms. You acknowledge that JOSHFIRE will not have any liability or responsibility to You or any other person (including to any end-user) in regard to whether or not the Cross-Device App is eligible and qualifies for delivery to end-users via any platform or marketplace.
7.2 You acknowledge and agree that if You are provided with hosting services by JOSHFIRE for the Cross-Device App, JOSHFIRE services depend upon computer systems that are responsive to the demands of the Internet, and that JOSHFIRE shall only undertake all possible and reasonable efforts to ensure service is performed pursuant to the Agreement.
7.3 System processing and response time may result in some degradation of the FACTORY services. JOSHFIRE shall use reasonable endeavor to provide continuing availability of servers and services, but shall not under any circumstances be liable for service interruptions or down time of the server or any absence of any other service or problem relating to any service. In such circumstances, Joshfire shall not be liable for any resulting harm to User or any third party.
7.4 JOSHFIRE shall not be liable for any harm degrading the Cross-Device App, its features, or data, resulting from any unauthorized access to the FACTORY.
7.5 To the extent not prohibited by applicable law, in no event will JOSHFIRE be liable for personal injury, or any incidental, special, indirect, consequential or punitive damages whatsoever, including, without limitation, damages for loss of profits, loss of data, business interruption or any other commercial damages or losses, arising out of or related to this Agreement, Your use or inability to use the JOSHFIRE services, or Your development efforts or participation of any kind in the FACTORY, however caused, whether under a theory of contract, warranty, tort (including negligence), products liability, or otherwise, even if JOSHFIRE has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any remedy. In no event shall JOSHFIRE’s total liability to You under this Agreement exceed the price of the products or services paid for in the preceding 12 (twelve)-month period.
8.1 This Agreement is effective upon acceptance. Any access or use of the Factory shall be deemed your conclusive acceptance of the Agreement, in accordance with its latest version in force.
8.2 In particular, You acknowledge and agree Your conclusive acceptance of the Agreement includes any specific condition set forth in the Financial Terms or other documents mentioned in Article 13.4 herein.
8.3 In the event that You are deemed to benefit from the provisions of Article L. 121-20 of the French Consumer Code (Code de la consommation), You understand and acknowledge that the FACTORY services may fall under the conditions of Article L. 121-20-2 of the same Code -which provides that the right of withdrawal for 7 (seven) days established by Article L. 121-20 cannot be exercised in the case of products which, because of their nature, cannot be returned or are liable to deteriorate or expire rapidly.
9. Suspension, Termination
9.1 You agree that Joshfire may suspend services to You without notice and without liability if: (i) Joshfire reasonably believes that the services are being used in violation of the Agreement; (ii) You fail to cooperate with any reasonable investigation of an suspected violation of the Agreement; (iii) Joshfire reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency.
9.2 You may terminate any subscription to services pursuant to this Agreement upon 1 (one) month advance notice prior to the expiration of the initial term or any renewal term.
10.1 Without prejudice to the provisions of any applicable license relating to open-source programs, JOSHFIRE and the User agree that all confidential information communicated to it by the other is done so in confidence and will be used only for the purposes of this Agreement and will not be used to compete with the other party or disclosed to any third party without prior written consent of the other party except as permitted under this Agreement. Upon the termination of this Agreement and upon request of the disclosing party, each party shall promptly return all confidential information of the other party. This provision shall survive the termination to this agreement.
11. Amendments to the AGREEMENT
11.1 You agree that Joshfire may amend this Agreement from time to time, and without notice. Amendments to the Agreement shall be effective immediately upon posting of the modified Agreement on the FACTORY.
11.2 You agree to review the Agreement regularly to be aware of any amendment. If You do not wish to be bound by these terms and conditions, You may not access or use the Factory. Use of any functionality of the Factory constitutes acceptance of this Agreement. You represent and warrant that You have read, understood and accepted the terms and conditions set forth herein, and that Your continued access or use of the Factory shall be deemed Your conclusive acceptance of the modified Agreement. If You do not agree to be bound by this Agreement, you may not use the Factory in any way.
12. Choice of law and Forum
12.1 This Agreement shall be exclusively governed and construed in accordance with the laws of France. The French version of this Agreement shall govern in the event of a dispute of interpretation. These French Terms of Services (Conditions Générales d’Utilisation) are posted at http://factory.joshfire.com/tos-fr.
12.2 You agree that any action or proceeding between Joshfire and You for any purpose concerning this Agreement or the parties’ obligations hereunder shall fall under the exclusive competence of courts under the jurisdiction of Paris, notwithstanding plurality of defendants or introduction of third parties, even for enforcement procedures. You irrevocably consent to the jurisdiction of such courts.
13.1 References to terms defined in the Agreement appear in small caps.
13.2 The titles of the sections and paragraphs of the Agreement have been inserted for convenience only and shall not be considered as forming part hereof, nor shall they be considered as the exact description of the content of any Article or paragraph, nor shall they be used in interpreting same.
13.3 If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such a provision shall be severed from the Agreement and the other provisions shall remain in full force and effect. In such event, the parties shall replace the cancelled provision, to the extent permitted, with a valid provision that is in keeping with the spirit and purpose hereof.
13.5 No provision other than those of this Agreement shall be deemed applicable or prevailing, unless by an agreement in writing accepted by both parties.
13.6 Joshfire’s failure or delay in enforcing any provision of the Agreement shall not be deemed a waiver of that Joshfire’s rights with respect to that provision or any other provision of the Agreement.
13.7 JOSHFIRE and You shall remain at any time independent contractors and this Agreement shall not be interpreted as creating any partnership, joint venture, or employment agreement. Neither You nor JOSHFIRE will represent itself to be agent of the other. You acknowledge that you have no power or authority to bind JOSHFIRE on any agreement and that You will not represent to any person that You have such power or authority.
13.8 You acknowledge and agree that Joshfire retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. You may not use JOSHFIRE name or trademark, wholly or in part, without its prior written consent.
13.9 All notices, reports, requests, or other communications given pursuant to this Agreement shall be made in writing and be submitted forthwith by registered letter with acknowledgement of receipt to be deemed to have been duly given.
13.10 You certify to JOSHFIRE and agree that You are the legal age of majority in the jurisdiction in which You reside (at least 18 years of age in many countries) and have the right and authority to enter into this Agreement on Your own behalf, or if You are entering into this Agreement on behalf of Your company, organization, educational institution, or agency, instrumentality, or department of the government, that You have the right and authority to legally bind such entity or organization to the terms and obligations set forth herein.
13.11 You acknowledge and agree that You are fully aware of the specific and worldwide nature of the Internet and of the risks inherent to the use of it. You acknowledge that You take all necessary steps in using the Factory and the Cross-Device App as required by the framework, the composition and the nature of the Internet.
13.12 You acknowledge and agree that You are fully aware of all conditions and terms, in particular regarding JOSHFIRE’s exclusion or limitation of liability, applicable to Your use of the FACTORY, and You confirm having checked that the services and related Agreement meet Your requirements and that Joshfire has provided You with all the information and advice You require to enter into this commitment in full knowledge of the facts.
In particular, You understand and acknowledge that neither the FACTORY nor any JOSHFIRE services pursuant to this Agreement are intended for use in the development of Cross-Device App in which errors or inaccuracies in the content, functionality, services, data or information provided by the application or the failure of the application, could lead to death, personal injury, or severe physical or environmental damage, and, to the extent permitted by law, You hereby agree to indemnify, defend and hold harmless each JOSHFIRE indemnified party from any losses incurred by such party by reason of any such use.
14. Dailymotion app creator
If you are using the FACTORY from within our partner Dailymotion (http://www.dailymotion.com) as part of the "app creator" feature, you agree not to make money from the generated Cross-Device App (be it by sales on application markets or by advertising solutions).