TERMS OF SERVICE

Last updated on: 28.10.2020

We are Nevercode LTD, a company registered in the UK, registry code: 10577696 ("Nevercode" or "We"). We primarily operate under the trade name Codemagic.

We are operating the website https://codemagic.io/, its subdomains (the "Website"), and the web-based Codemagic IT development solution, including the software, databases, interfaces, associated media, documentation, updates, new releases and other components or materials incorporated therein or integrated therewith (hereinafter collectively "Platform").

Through the Platform we provide software development applications and services for our customers ("Customer"). Any service made available by Nevercode via Platform is hereinafter referred to as the "Service" or the "Services". The specific content, scope and description of the Services may vary from time to time. You can find information about the content of the Platform and Services on the Website.

By using our Services, you confirm that you have carefully read and understood these Terms of Service (the "Terms") and agree to be bound by them. These Terms, the Privacy Policy available at the Website and the documents referenced herein as integral part of the Agreement form together a legally binding agreement between Nevercode and the Customer (the "Agreement") that shall govern the provision of respective Services.

1. DEFINITIONS

   "Agreement"	defined in the preamble;
   "Business Day"	any day other than a Saturday, Sunday or a public holiday in Estonia;
   "Documentation"	all documents made available to the Customer in connection with the Agreement;
   "Fees"	fees payable for the Services;
   "Misuse of Services"	use of Services in breach of any requirement, restriction, term or condition of the Agreement; breach or alleged or potential breach by the Customer of any applicable laws and regulations relating to the Services; any other material breach of the Customer’s obligations under the Agreement; such material breach including any breach which, if capable of remedy, is not remedied within 14 days of the date of Nevercode’s notice to the Customer about such breach;
   "Price List"	list of Fees applicable to Services that specifies: different pricing models that can be selected by the Customer (for example “Pay-As-You Go”, “Monthly payment”, “Annual payment” or any other model or package available from time to time); any other information relevant to pricing. Price Lists (as applicable from time to time) are incorporated by reference into, and form an integral part of, the Agreement;
   "Services"	defined in the preamble;
   "User"	means any person, who has registered a user account on the Platform;
   "Virus"	thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, device, equipment, hardware, network or service and/or prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data and/or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;
   "Vulnerability"	a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability;
   "Non-Nevercode Application"	any Internet-based or offline software application that is provided by you or a third party and interoperates with the Services;
   "Your Data"	any data, software, information, text, audio files, graphic files, content or other material received by the Services from you or any Users in the course of your accessing or using the Services, excluding Nevercode Content, Third-Party Content and Non-Nevercode Applications.

2. SERVICES

   1. The terms and conditions of the Agreement govern the provision of all Services which are made available by Nevercode to the Customer through the Platform, including any services which are not defined in these Terms, but which are explicitly listed and described in the service description on the Website (if made available).
   2. The Customer acknowledges and agrees that:
      1. Nevercode performs the Services within the boundaries of its technical and operational capabilities; and
      2. the availability and/or quality of certain elements of the Services may depend on the features, specifications, limitations and conditions of the hardware/software used by the Customer.
   3. Furthermore, Nevercode does not warrant that the Customer’s use of the Services will be uninterrupted or error-free or that the Services will meet the Customer’s requirements or that the Software or the Services will be free from Vulnerabilities.
   4. Nevercode may unilaterally change the scope the type and scope of Services provided in case
      1. Nevercode itself improves, changes, adapts or adjusts any of the Services, including adds or removes any features or elements of the Services or
      2. there is any change in Nevercode’s costs, expenses, risks and/or liabilities relating to the provision of the Services or
      3. there are other objective reasons of whatsoever nature.

3. ACCESSING THE SERVICES

   1. For accessing the Services, the Customer shall register via Website, create a user account and accept the Terms. In case the Customer is a legal entity, then user accounts can be created for multiple Users. User account can be created either via Nevercode supported authentication methods e.g. email or via Non-Nevercode-Applications (e.g. GitHub OAuth app). The Customer shall be responsible for all actions and omissions of all Users who have a user account created by or on behalf of the Customer.
   2. The Customer confirms and is responsible that any registration information submitted by each User is true, accurate, and complete. Details of the required registration information are provided on the Website.
   3. If the Customer is a natural person, then in order to use the Service and enter into the Agreement, the Customer must be at least 18 years of age or have a valid authorization from his or her legal representative or custodian. If the Customer is a legal entity, it must be duly incorporated and have full legal capacity and the person accepting the Terms on behalf of the Customer is deemed to have represented that he or she has full authority to represent that Customer.
   4. For avoidance of any doubt, no person may use the Platform or Services if he, she or it has not agreed to be bound by the Terms.

4. USE OF THE SERVICES

   1. Subject to other terms and conditions of the Agreement, Nevercode hereby grants to the Customer a limited non-exclusive, non-sublicensable and non-transferable license to use the Services.
   2. The Services are provided to the Customer on an “as is” and “as available” basis without any warranties of any kind either express or implied.
   3. Nevercode shall make reasonable efforts to make the Services available 24 hours a day, seven days a week, but does not warrant that the access will be uninterrupted. Access may be interrupted, among others, for scheduled and unscheduled maintenance.
   4. The Customer acknowledges and agrees that Nevercode and/or its licensors own all intellectual property rights in the Platform and Services. Except as expressly stated herein, the Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade-marks, or any other rights or licences in respect of the Platform or the Services.
   5. As between you and us, Your Data is your property, and you retain any and all rights, title and interest in and to Your Data. Our use of Your Data shall be limited to our providing the Services to you and your Users or as otherwise permitted under this Agreement.
   6. We Need a Limited License to Your Data to Provide the Services. You hereby grant us, and our Affiliates and applicable contractors a worldwide, non-exclusive, royalty-free, fully paid, sublicensable, non-transferable [except as specified in 4.6.1], license to receive, host, store, analyze, process, enhance, copy, transmit, create derivative works of, maintain and display Your Data that you or any User posts to the Services (either directly or via a Non-Nevercode Application)
      1. to provide the Services in accordance with this Agreement, and
      2. to generate Usage Data which we may use for any business purpose during or after the Term of this Agreement (including without limitation to develop and improve our products and services). For the avoidance of doubt, we shall own all right, title and interest in and to the Usage Data including without limitation all Intellectual Property Rights therein. If you choose to use a Non-Nevercode Application with the Services, you grant us permission to allow the Non-Nevercode Application and its provider to access Your Data and information about your and your Users’ usage of the Non-Nevercode Application, as appropriate for the interoperation of that Non-Nevercode Application with the Services. Subject to the limited licenses granted herein, we acquire no right, title or interest from you or your licensors under this Agreement in or to Your Data.
      1. Assignment. Neither Party may assign or otherwise transfer (by operation of law or otherwise) this agreement, or any of a Party’s rights or obligations under this Agreement, to any third party without the other Party’s prior written consent, which consent must not be unreasonably withheld, delayed or conditioned; provided, however, that either Party may assign or otherwise transfer this Agreement
         1. to a successor-in-interest in connection with a merger, acquisition, reorganization, a sale of all or substantially all of its assets, or other change of control, or
         2. to any of its Affiliates. In the event of such a permitted transfer by either Party, the rights granted under this Agreement shall continue to be subject to the same usage limitations that applied prior to the transfer. Any purported assignment or other transfer in violation of this Section is void. Subject to the terms of this Section, this Agreement shall be binding to the benefit of the Parties and their respective permitted successors and transferees.

5. CUSTOMER'S OBLIGATIONS RELATING TO THE USER OF SERVICES

   1. The Customer shall not use nor allow the use of Services by any User in any way that is inconsistent with the Terms.
   2. The Customer shall comply with all applicable laws and regulations relating to the use of the Services.
   3. The Customer shall also ensure that all devices, software and hardware used in connection with its use of the Services are fit for use for using the Services.
   4. The Customer (and not Nevercode) is liable for their actions when using the Service. This means any and all content, information and data transmitted, made available, or processed in any way through the use of the Services or in connection therewith. The Customer is also liable for the result of their actions, including any consequences of any use or misuse of, or reliance on, the Services.
   5. The Customer shall ensure that Nevercode does not incur any damages or costs and is not liable to any person as a result of the use of Services or Misuse of Services by the Customer.
   6. The Customer shall not access, store, distribute or transmit any Viruses in connection with the Services and shall not introduce or permit the introduction of, any Virus or Vulnerability into the Nevercode’s and Carriers’ network and information systems.
   7. The Customer shall not use the Services in a way that:
      1. is unlawful, immoral, unethical or in conflict with industry guidelines, practices or codes;
      2. harmful, threatening, defamatory, obscene, infringing, harassing or discriminatory based on race, gender, colour, religious belief, sexual orientation, disability or other ground;
      3. causes damage or injury to any person or property;
      4. may cause malfunctions or other adverse or unforeseen effects on the functionality or operation of the Services; or
      5. may infringe the intellectual property rights of any person.
   8. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Nevercode.
   9. The Customer shall provide Nevercode with all necessary cooperation in relation to the Agreement and all information and documents required by Nevercode for the performance of its rights and obligations under the Agreement.

6. FEES AND PAYMENT

   1. In consideration for the Services the Customer shall pay to Nevercode the applicable Fees.
   2. The amounts of Fees are set out in Price List which will be made available to the Customer on the Website, by e-mail (for example, through a link in the e-mail) or in any other manner accepted by the Customer in the course of use of the Services. However, the Customer acknowledges and agrees that Nevercode may unilaterally change the Fees at any time and from time to time. Above all, Nevercode may unilaterally change the Fees in case
      1. there is any change in Nevercode’s costs, expenses, risks and/or liabilities relating to the provision of the Services or
      2. there are other objective reasons of whatsoever nature.
   3. Nevercode shall notify the Customer of changes in Fees by providing an updated Price List by e-mail, on the Website or in any other manner accepted by the Customer. If the Customer does not agree with the changes, it may terminate the Agreement. The continued use of Services by the Customer following the receipt of updated Price List constitutes an acceptance by the Customer of the Fees in the updated Price List.
   4. The amounts of Fees are exclusive of value added tax (VAT) and other taxes payable by the Customer in its jurisdiction unless otherwise explicitly specified in the Price List.
   5. The Customer shall pay the Fees in accordance with the invoices issued by Nevercode on a monthly or annual basis. The Fees shall be paid in the currency the invoice is issued in within the due date on the invoice by a bank transfer to Nevercode’s bank account specified in the invoice or, if the Customer is paying via credit card or other payment method then Customer is responsible for providing us complete and accurate information of the applicable credit card. Customer represents and warrants that all such information is correct and that you are authorized to use such credit card.Customer agrees to promptly update the billing information if it changes (e.g. a change in billing address). For avoidance of doubt, if not specified in the invoice, each invoice issued by Nevercode shall be due within 14 days from issuing.
   6. Nevercode shall be entitled to audit any records relevant to Customer or any of Customer’s Users’ use of the Services hereunder. We may audit such records on reasonable notice at our cost (or if the audits reveal material non-compliance with this Agreement, at your cost).
   7. The Fees are non-cancellable and non-refundable unless stated otherwise in a separate agreement between the Parties.
   8. Upon any delay with any payment under the Agreement, Nevercode may request the Customer to pay a penalty for delay in the amount of 0.05% of the delayed amount per each day of delay.

7. LIMITATION OF LIABILITY

   1. Nevercode is not liable for, and the Customer may not rely on, any breach, event or circumstance (including any limitation, fault, problem, delay or interruption in the Services and/or in the delivery, transmission, re-transmission or reception of data via the Services):
      1. that has been caused by or is attributable to any action or omission of, or other circumstance depending on any other third party;
      2. that has been caused by or is attributable to specifications, limitations and conditions of the hardware or software used by the Customer upon using the Services.
   2. Neither Party is liable to the other Party, whether under the Agreement or otherwise, for any damages other than direct proprietary damages. A Party is not liable for any loss of revenue, loss of business, anticipated savings or profits or any indirect, special or consequential damages or similar damages. The aforesaid limitation does not apply in case the damage is caused intentionally or through gross negligence.
   3. Nevercode is liable for any breach of the Agreement only if it has committed the breach intentionally or as a result of gross negligence.
   4. Nevercode’s aggregate liability arising in connection with the performance of the Agreement shall be limited to the total amount of Fees paid by the Customer during 12 months immediately preceding the date on which the claim arose.

8. SUSPENSION OF SERVICES

   1. Nevercode may suspend the provision of the Services to the Customer, including by way of deactivating the access to the Services, if there is a Misuse of Services or if this is necessary to ensure the security of Nevercode’s website(s) and/or other users of the Services.

9. TERMINATION OF AGREEMENT

   1. The Agreement is in force until Customer or Nevercode terminate it.
   2. The Customer may terminate the Agreement unilaterally at any time by logging into its user account on the Website.
      1. If the Customer is paying by invoice via bank transfer the Customer must notify their account manager or email info@codemagic.io with the request to terminate the Agreement.
   3. Nevercode may terminate the Agreement unilaterally ordinarily, i.e. without providing any reason, by giving the Customer at least 30 days advance notice.
   4. Nevercode may terminate the Agreement unilaterally extraordinarily without advance notice in case any of the following occurs:
      1. appointment of interim trustee (in bankruptcy) in respect of the Customer or commencement of bankruptcy proceedings in respect of the Customer;
      2. there is a Misuse of Services;
      3. any payment by the Customer under the Agreement is overdue by more than 14 days; and/or
      4. any other material breach by the Customer of its obligations, including any breach which, if capable of cure, is not cured within 14 days of the date of Nevercode’s notice to the Customer about such breach.

10. LINKED SITES AND THIRD PARTY CONTENT

    1. The Platform and the Services may include links to other websites or services or to third party content.
    2. Nevercode does not endorse any such linked sites or third party content or the information, material, products, or services contained on or accessible through linked sites. Access and use of linked sites, including the information, material, products, and services on linked sites or available through linked sites is solely at your own risk.

11. FINAL PROVISIONS

    1. References to words “include” or “including” (or any similar term) are not to be construed as implying any limitation and general words introduced by the word “other” (or any similar term) shall not be given a restrictive meaning because they are preceded or followed by words indicating a particular class of acts, matters or things.
    2. The Agreement and any rights or claims arising out of or in connection with the Agreement (including any non-contractual claims) shall be governed by the substantive law of Estonia without giving effect to any conflicts of law rules. Any disputes arising from these Terms of Service shall be settled in the Harju County Court in the Republic of Estonia.

12. NOTICES

    1. Unless otherwise specified in the Agreement any notice or other communication under the Agreement must be in a form reproducible in writing and, in case of notice to Nevercode, must be sent to the respective e-mail address specified in this Section.
    2. A notice or communication made in accordance with this Section shall be deemed received as follows:
       1. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume (business hours means 9.00am to 6.00pm Monday to Friday on a day that is not a public holiday in the place of receipt);
       2. if delivered by hand (including courier delivery), at the time of delivery; and
       3. if sent by registered mail, on the 4th day after posting.
    3. Nevercode’s addresses, contacts and other details are specified below.

       	Nevercode
       Address	Akadeemia st 3, 51003, Tartu Estonia
       E-mail	info@codemagic.io