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.
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).
4.3 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.
4.5 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
7.3 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).
7.7 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.
Last updated on: Nov. 1, 2014.