Cherwell Community

Cherwell mApp Exchange Terms of Use

THE CHERWELL mApp EXCHANGE, A SERVICE THAT CONNECTS DEVELOPERS AND CUSTOMERS OF ADD-ONS TO CHERWELL SERVICE MANAGEMENT, IS PROVIDED TO YOU BY CHERWELL SOFTWARE, LLC ("CHERWELL"), ACCORDING TO THE FOLLOWING TERMS AND CONDITIONS ("TERMS OF USE"). ADDITIONAL TERMS MAY APPLY WHERE APPLICABLE. USE OF THE CHERWELL mApp EXCHANGE SIGNIFIES YOUR ACCEPTANCE OF THE TERMS OF USE. IF YOU DO NOT AGREE TO THE TERMS OF USE, DO NOT PROCEED AND DO NOT CLICK OR INDICATE “I AGREE WITH THE TERMS OF USE”.

1. Definitions:

1.1 Cherwell mApp. A Cherwell Mergeable Application (or “mApp") is meta data created within the Cherwell Service Management platform ("CSM” or the “Licensed Software") for a specific purpose or application (for example, property management or human resources) using only the executable version (object code only, no source code) of the Licensed Software. CSM provides various levels of integration and mApp solutions offer the most advanced level of integration – providing system definitions (such as business objects, forms, grids, relationships, One-Step actions, search groups, etc.) that can be transferred between databases so that functionality can be merged.

1.2 Cherwell mApp Exchange.The Cherwell mApp Exchange (or the “Service") is a website that allows developers ("Developers") of mApp solutions to market and/or upload those mApp solutions and for authorized users of CSM ("Customers") to download, install and utilize those mApp solutions.The Service also includes any other location at which Cherwell makes available mApp files, or any other webpage, application, mobile interface, service or user interface that allows for the discovery, download, use or purchase of mApp technology.

2. Cherwell End-User License Required.Developers, Customers or any other user of the Service or a mApp file must have a valid license to use CSM.By using this Service, you represent and warrant that you are party to an existing (non-terminated) Cherwell End-User License Agreement, End-User Subscription Agreement, or a Cherwell Authorized Partner Agreement or substantially similar agreement under which you are granted a current license to CSM (collectively, “EULA").You may not use a mApp file in a manner which is contrary to or violates the terms and conditions of your EULA, including, without limitation, violation of the number of concurrent users allowed under the EULA.While use of this Service or any mApp file requires a EULA, your use of this Service and any mApp file is specifically governed by these Terms of Use, notwithstanding any provision to the contrary in your EULA (including any provision restricting the use of “click-wrap” or “shrink-wrap” agreements and any provision expanding Cherwell’s liability beyond that under these Terms of Use).

3 Ownership of mApp Solutions.Your EULA for CSM includes the non-exclusive, nontransferable (except as otherwise set forth in the EULA) right to create mAppsolutions. Cherwell owns and retains all intellectual property rights in mApp solutions, however, Cherwell hereby grants Developer the exclusive (including as between Developer and Cherwell), royalty-free license to distribute, copy, create derivative works from, and display mApp solutions which Developer creates, subject to the following:

3.1 Any mApp solutions for which Developer desires the exclusive rights set forth above must be an original work of authorship, as provided for under the Copyright Act, 17 U.S.C. § 101 et. seq. ("Original Work") and not a derivative of any other mApp solution (including any translation thereof), including mAppsolutions developed by Cherwell or any other third party (and any translations thereof).

3.2 No rights granted hereunder shall apply to any mApp solution which is not an Original Work (including original “look and feel").Developer is responsible for performing due diligence in determining whether any of its mApp solutions are an Original Work.Cherwell is under no obligation to enforce Developer’s rights hereunder as to any third party, including any party who claims to have similar rights or alleges that a Developer’s mApp solution is not an Original Work.

3.3 Nothing herein limits Cherwell’s right to create mApp solutions, and Developer acknowledges that Cherwell, or a third party, including other Developers, may now market or have under development mApp solutions which are competitive to mApp solutions which Developer creates.

3.4 Any translation or localization of a mApp solution into another language is a derivative work and included within the scope of the mApp solution; Cherwell owns and retains all intellectual property rights in such translation or localization, however, the exclusive rights granted above shall likewise be included within the scope of the translation.

4.Uploading/Posting of mApp Solutions.The following terms apply to you if you, a Developer, post or upload mApp solutions developed by you to the Service:

4.1 You represent and warrant that your mApp solution is an Original Work and not a derivative of any other mApp solution (including any translation thereof), including mApp solutions developed by Cherwell or any other Developer (unless you have the license to do so from Cherwell or the other Developer, as the case may be).

4.2 You represent and warrant that them mApp file is free of any virus or otherwise malicious code, or any code or command intended to bring down the Licensed Software or Customer’s computers/networks automatically or upon command or otherwise impair their use.You agree not to post any mApp solutions that may be used for any illegal purpose.You also agree that Cherwell may remove from the Service any mApp solution that violates these Terms of Use or any applicable EULA.

4.3 If any content or data contained in a mApp file is not original to or owned by you, you represent and warrant that you have the legal right to distribute that content or data without infringing any third party right.

4.4 Paid mApp Solutions.If you desire to charge a fee for a mApp solution (a “Paid mApp"), you will be required to provide an external URL to process the payment and complete the transaction between you and Customer; the Service will direct the Customer to the URL.The terms of any such transaction are strictly between you and Customer and you are not authorized to act on behalf of Cherwell. You agree that any such terms shall not be in violation of the Customer’s EULA or these Terms of Use.You further acknowledge and agree that you are responsible for the collection of any taxes, levies, duties or similar government assessments of any nature, including without limitation value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes") associated with any Paid mApp solution, and otherwise ensuring that the transaction complies with applicable law.

4.5 Subject to the exclusive license granted herein, and any separate terms you establish with a Customer for a Paid mApp solution, you hereby grant Customers a non-exclusive, non-transferable, worldwide license to freely use the mApp solution, including the right to modify a mApp solution for Customer’s own internal use.

4.6 You acknowledge that each mApp solution you upload may be subject to user reviews, as described below, and you hereby consent thereto.Cherwell further reserves the right, in its sole discretion, to highlight certain mApp solutions, or none at all.

5. Downloading, Installing and Using mApp Solutions.The following terms apply to you if you, a Customer, download, install, and use mApp solutions posted on the Service:

5.1 You understand that Cherwell does not endorse the skill or ability of any Developer (including a mApp solution where the Developer charges a fee) or the quality of any mApp solution posted on Cherwell mApps Store. You are solely responsible for determining the fitness of the mApp solutions for your purpose.

5.2 You agree that a mApp solution is provided to you by the Developer "as is" and any express or implied warranties, including, but not limited to, the implied warranties of merchantability, non-infringement and fitness for a particular purpose are disclaimed. In no event shall the Developer or Cherwell be liable for any direct, indirect, incidental, special, exemplary, or consequential damages (including, but not limited to, procurement of substitute goods or services; loss of use, data, or profits; or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise) arising in any way out of the use of this mApp solution, even if advised of the possibility of such damage.

5.3 Applying a mApp solution might overwrite or modify some of your CSM system definitions. Performing a system backup is highly recommended. You will have several opportunities to cancel the mApp installation before changes are committed to your system. However, once the mApp file is applied, the changes are permanent and cannot be undone.You represent and warrant that you understand the implications of applying a mApp solution to your system environment,and that you should apply the mApp solution to a test environment before committing it to your live production environment.

5.4 Cherwell does not warrant that mApp solutions posted on Cherwell mApps Store will be free from intellectual property right infringement claims. However, this disclaimer of warranty does not apply to mApp Solutions posted by Cherwell.

5.5 You understand that Cherwell does not have any kind of affiliation with the Developers other than as authorized, licensed users of CSM.If you choose to download a Paid mApp solution, you will be directed to a URL address/website that is not owned or controlled by Cherwell.Cherwell is not responsible for such third party site or its privacy policies.You acknowledge and agree that Developers are not authorized to act on behalf of Cherwell, and that Cherwell is not a party to, and shall have no obligation under, any payment or other terms that are strictly between you and a Developer regarding a Paid mApp solution.

5.6 You understand that Cherwell’s support obligation does not include providing technical assistance and resolving issues specifically related to mAppsolutions provided by Developers. Cherwell may provide troubleshooting to attempt to isolate the cause of any issues related to mApp solutions, but will not make design recommendations or address issues related to any customized configuration of the Cherwell platform.

5.7 You agree not to (i) use a mApp solution other than in accordance with your EULA; and (ii) copy or further distribute or commercially exploit a mAppsolution (including any derivative work thereof) in violation of the license granted herein to the Developer.

6. Review and Rating of mApp Solutions.Cherwell permits review and rating of mApp solutions posted on the Service by persons who have used the mApp solutions ("User"). The following terms apply to you if you, a User, submit a review of a mApp solution:

6.1 You understand that reviews and ratings should be unbiased. You must disclose your affiliation if you submit a review for your own product or that of a competitor.

6.2 You agree not to post more than one review of a mApp solution, unless the subsequent review is necessary as a result of a change in your assessment of the product based on further evaluation.

6.3 Your review should be relevant. You agree not to post any irrelevant, fraudulent, misleading, obscene, insulting, harassing, offensive or otherwise objectionable content in your reviews. You also agree not to post any commercial solicitation or links to irrelevant third-party sites.

6.4 You grant Cherwell the right to use any review you may post on the Service.Cherwell also reserves the right to delete any review which it determines, in its sole discretion, is in violation of the above.

7. General Terms

7.1 Violation of Terms of Use.Cherwell may suspend or terminate your access to the Service or remove the content and/or mApp solutions posted by you in the event of a violation of the Terms of Use. Cherwell also reserves the right to initiate appropriate legal action against you in the event of such violation.

7.2 Modification of Terms of Use.Cherwell reserves the right to modify these Terms of Use.Modifications to the Terms of Use are effective upon your use of the Service subsequent to publication of such modification.You may terminate your use of the Service or any mApp solution if the Terms of Use are modified in a manner that substantially affects your rights in connection with use of the Service or any mApp solution.Your continued use of the Service or any mApp solution after notice of any change to the Terms of Use will be deemed to be your agreement to the amended Terms of Use.

7.3 Disclaimer of Warranties.YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN AS-IS-AND-AS-AVAILABLE BASIS. EXCEPT AS OTHERWISE SET FORTH HEREIN, CHERWELL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CHERWELL MAKES NO WARRANTY THAT ACCESS TO THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR VIRUS FREE. USE OF ANY MATERIAL DOWNLOADED OR OBTAINED THROUGH THE SERVICE SHALL BE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE TELEPHONE, WIRELESS DEVICE OR DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM CHERWELL, ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.

7.4 Limitation of Liability.TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT CHERWELL SHALL, IN NO EVENT, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER LOSS OR DAMAGE WHATSOEVER OR FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, COMPUTER FAILURE, LOSS OF BUSINESS INFORMATION, OR OTHER LOSS ARISING OUT OF OR CAUSED BY YOUR USE OF OR INABILITY TO USE THE SERVICE OR ANY mApp SOLUTION, EVEN IF CHERWELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH CHERWELL RELATED TO THE SERVICE OR ANY mApp SOLUTION, SHALL BE TERMINATION OF ACCESS TO THE SERVICE OR TO THE APPLICABLE mApp SOLUTION. IN NO EVENT SHALL CHERWELL’S ENTIRE LIABILITY FOR DIRECT DAMAGES UNDER THESE TERMS OF SERVICE EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00).

7.5 Indemnification.To the extent permitted by applicable law, you agree to indemnify and hold harmless Cherwell, its officers, directors, employees, suppliers, and affiliates, from and against any losses, damages, fines and expenses (including attorney's fees and costs) arising out of or relating to any claims that you have used the Service in violation of another party's rights, in violation of any law, in violations of any provisions of the Terms of Use, or any other claim related to your use of the Service and any mApp Solution.

7.6 Personal Information and Privacy.Personal information you provide to Cherwell through the Service or through any mApp solution is governed by the Cherwell Privacy Policy http://www.cherwell.com/privacy. Your election to use the Service or any mApp solution indicates your acceptance of the terms of the Cherwell Privacy Policy. You are responsible for maintaining confidentiality of your username, password and other sensitive information. You are responsible for all activities that occur in your user account and you agree to inform us immediately of any unauthorized use of your user account by email to mappexchange@cherwell.com. We are not responsible for any loss or damage to you or to any third party incurred as a result of any unauthorized access and/or use of your user account, or otherwise.

7.7 Spamming and Illegal Activities.You agree to be solely responsible for the contents of your transmissions through the Service.You agree not to use the Service for illegal purposes or for the transmission of material that is unlawful, defamatory, harassing, libelous, invasive of another's privacy, abusive, threatening, harmful, vulgar, pornographic, obscene, or is otherwise objectionable, offends religious sentiments, promotes racism, contains viruses, or that which infringes or may infringe intellectual property or other rights of another. You agree not to use the Service for the transmission of "junk mail", "spam", "chain letters", “phishing” or unsolicited mass distribution of email. We reserve the right to terminate your access to the Service if there are reasonable grounds to believe that you have used the Service for any illegal or unauthorized activity.

7.8 Data Ownership.We respect your right to ownership of data created or stored by you. You own the data created or stored by you. Unless specifically permitted by you, your use of the Service does not grant Cherwell the license to use, reproduce, adapt, modify, publish or distribute the content created by you or stored in your user account for Cherwell’s commercial, marketing or any similar purpose. But you grant Cherwell permission to access, copy, distribute, store, transmit, reformat, publicly display and publicly perform the content of your user account solely as required for the purpose of providing the services to you.

7.9 User Generated Content.You shall be solely responsible for any content you make available through the Service and the consequences of its transmission or publication. Any content made public will be publicly accessible through the internet and may be crawled and indexed by search engines. You are responsible for ensuring that you do not accidentally make any private content publicly available. Any content that you may receive from other users of the Service is provided to you AS IS for your information and personal use only and you agree not to use, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise exploit such content for any purpose, without the express written consent of the person who owns the rights to such content. In the course of using the Service, if you come across any content with copyright notice(s) or any copy protection feature(s), you agree not to remove such copyright notice(s) or disable such copy protection feature(s) as the case may be. By making any copyrighted/copyrightable content available on any of the Service you affirm that you have the consent, authorization or permission, as the case may be from every person who may claim any rights in such content to make such content available in such manner. Further, by making any content available in the manner aforementioned, you expressly agree that Cherwell will have the right to block access to or remove such content made available by you, if Cherwell receives complaints concerning any illegality or infringement of third party rights in such content.

7.10 Suspension and Termination.We may suspend your user account or temporarily disable access to all or part of the Service in the event of any suspected illegal activity, extended periods of inactivity or requests by law enforcement or other government agencies. Objections to suspension or disabling of user accounts should be made to mappexchange@cherwell.com within thirty days of being notified about the suspension. We may terminate a suspended or disabled user account after thirty days. We will also terminate your user account on your request. In addition, we reserve the right to terminate your user account and deny access to the Service upon reasonable belief that you have violated the Terms of Use.Termination of a user account will include denial of access to the Service, deletion of information in your user account such as your e-mail address and password and deletion of all data in your user account.

END OF TERMS OF USE

Last updated on: Nov. 1, 2014.