Last Revised: November 14, 2016
1. Your Agreement with MemCachier
1.1. Your use of the MemCachier service (the “Service”) is governed by this agreement (the “Terms”). “MemCachier” means MemCachier, Inc. located in San Francisco, CA 94110, United States and its subsidiaries or affiliates involved in providing the Service. The “Service” means the services MemCachier makes available through this website, our API and any other software or services offered by MemCachier in connection to any of those.
1.2. In order to use the Service, you must first agree to the Terms. You can agree to the Terms by actually using the Service. You understand and agree that MemCachier will treat your use of the Service as acceptance of the Terms from that point onwards.
1.3. You may not use the Service if you are a person barred from receiving the Service under the laws of the United States or other countries including the country in which you are resident or from which you use the Service. You affirm that you are over the age of 13, as the Service is not intended for children under 13.
2. Your Account and Use of the Service
2.1. You must provide accurate and complete registration information any time you register to use the Service. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify MemCachier immediately.
2.2. Your use of the Service must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.
2.3.You agree not to (a) access (or attempt to access) the administrative interface of the Service by any means other than through the interface that is provided by MemCachier in connection with the Service, unless you have been specifically allowed to do so in a separate agreement with MemCachier, or (b) engage in any activity that interferes with or disrupts the Service (or the servers and networks which are connected to the Service).
3. Service Policies and Privacy
3.1. You agree to comply with the MemCachier Acceptable Use Policy included available at http://www.memcachier.com/legal/aup/ (the “Acceptable Use Policy”) which is incorporated herein by this reference and which may be updated from time to time.
3.3. You agree that you will protect the privacy and legal rights of the users of your application. You must provide legally adequate privacy notice and protection for those users. If the users provide you with user names, passwords, or other login information or personal information, you must make the users aware that the information will be available to your application and to MemCachier.
4. Fees for Use of the Service
4.1. Subject to the Terms, the Service is provided to you without charge up to certain limits. Usage over this limit requires your purchase of additional resources or services. The pricing for additional resources and services can be found here.
4.2. For all purchased resources and services, we will charge your credit card on a monthly basis or at the interval indicated in the Fees and Payment Policies, if different. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. You are responsible for paying all taxes and government charges, and all reasonable expenses and attorneys fees MemCachier incurs collecting late amounts. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights). Charges are solely based on MemCachier’s measurements of your use of the Service, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the discretion of MemCachier and only in the form of credit for the Service. Nothing in these Terms obligates MemCachier to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that you provide to MemCachier may be shared by MemCachier with companies who work on MemCachier’s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to MemCachier and servicing your account. MemCachier may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. MemCachier shall not be liable for any use or disclosure of such information by such third parties. MemCachier reserves the right to discontinue the provision of the Service to you for any late payments.
4.3. MemCachier may change its fees and payment policies for the Service by notifying you at least fifteen (15) days before the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted in the Service FAQ or the Fees and Payment Policies (or such other URL MemCachier may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason.
4.4. You may not develop multiple Applications to simulate or act as a single Application or otherwise access the Service in a manner intended to avoid incurring fees.
5. Content in the Service and Take Down Obligations
5.1. You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the Service are the sole responsibility of the person from which such content originated. All such information is referred to below as the “Content.” The term Content shall specifically exclude the web application that you create using the Service and any source code written by you to be used with the Service (collectively, the “Application”).
5.2. MemCachier reserves the right (but shall have no obligation) to pre-screen, review, refuse or remove any or all Content from the Service. You agree to immediately take down any Content that violates the Acceptable Use Policy, including pursuant to a take down request from MemCachier. In the event that you elect not to comply with a request from MemCachier to take down certain Content, MemCachier reserves the right to directly take down such Content or to disable the Application.
5.3. In the event that you become aware of any violation of the Acceptable Use Policy by an end user of the Application, you shall immediately terminate such end user’s account on your Application. MemCachier reserves the right to disable the Application in response to a violation or suspected violation of the Acceptable Use Policy.
5.4. You agree that you are solely responsible for (and that MemCachier has no responsibility to you or to any third party for) the Application or any Content that you create, transmit or display while using the Service and for the consequences of your actions (including any loss or damage which MemCachier may suffer) by doing so.
5.5. You agree that MemCachier has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Service. You further acknowledge that you are solely responsible for securing and backing up your Application and any Content.
6. Proprietary Rights
6.1. You acknowledge and agree that MemCachier (or MemCachier licensors) own all legal right, title and interest in and to the Service, including any intellectual property rights which subsist in the Service (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
6.2. Unless you have agreed otherwise in writing with MemCachier, nothing in the Terms gives you a right to use any of MemCachier’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.
6.3. Except as provided in Section 7, MemCachier acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or the Application that you create, submit, post, transmit or display on, or through, the Service, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with MemCachier, you agree that you are responsible for protecting and enforcing those rights and that MemCachier has no obligation to do so on your behalf.
7. License from MemCachier and Restrictions
7.1. MemCachier gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by MemCachier as part of the Service as provided to you by MemCachier. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by MemCachier, in the manner permitted by the Terms.
7.2. You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Service or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by MemCachier, in writing (e.g., through an open source software license); (b) attempt to disable or circumvent any security mechanisms used by the Service or any Application; (c) use the Service to create an Application that performs a malicious activity, including but not limited to spamming users, harvesting usernames and passwords, performing unauthorized scans of machines or ports or creating DoS attacks; or (d) upload or otherwise process any malicious content to or through the Service.
7.3. Unless MemCachier has given you specific written permission to do so (e.g., through an open source software license), you may not assign (or grant a sub-license of) your rights to use the Service, grant a security interest in or over your rights to use the Service, or otherwise transfer any part of your rights to use the Service.
7.4. Open source software licenses for components of the Service released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with MemCachier for the use of the components of the Service released under an open source license.
8. License from You
8.2. You agree that MemCachier, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Service.
9. Modification and Termination of the Service
9.1. MemCachier is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Service which MemCachier provides may change from time to time without prior notice to you. Changes to the form and nature of the Service will be effective with respect to all versions of the Service; examples of changes to the form and nature of the Service include without limitation changes to fee and payment policies, security patches, added functionality, and other enhancements.
9.2. You may discontinue your use of the Service at any time. MemCachier may, at any time, terminate your use of the Service if (A) you have breached any provision of the Terms (or have acted in manner that clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or (B) MemCachier is required to do so by law (for example, due to a change to the law governing the provision of the Service); or (C) the Service relies on data or services provided by a third party partner and the relationship with such partner (i) has expired or been terminated or (ii) requires MemCachier to change the way MemCachier provides the data or services through the Service; or (D) providing the Service could create a substantial economic burden as determined by MemCachier in its reasonable good faith judgment; or (E) providing the Service could create a security risk or material technical burden as determined by MemCachier in its reasonable good faith judgment.
9.3. If MemCachier suspends or terminates your use of the Service with cause, MemCachier will make a reasonable effort to give you access to, and the ability to export, your Content and Application(s) for a reasonable amount of time. If you voluntarily discontinue your use of the Service, you are solely responsible for exporting your Content and Application(s) prior to discontinuation.
9.4. Upon any termination of the Service under Section 9, these Terms will also terminate, but Sections 6.1, 10, 11, 12, and 16 shall continue to be effective after these Terms are terminated.
10. EXCLUSION OF WARRANTIES
10.1. NOTHING IN THESE TERMS, INCLUDING SECTIONS 10 AND 11, SHALL EXCLUDE OR LIMIT MEMCACHIER’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
10.2. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE.”
10.3. MEMCACHIER, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SERVICE INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MEMCACHIER, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE SERVICE WILL BE ACCURATE.
11. LIMITATION OF LIABILITY
11.1. SUBJECT TO SECTION 10.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT MEMCACHIER, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
11.2. THE LIMITATIONS ON MEMCACHIER’S LIABILITY TO YOU IN PARAGRAPH 11.1 ABOVE SHALL APPLY WHETHER OR NOT MEMCACHIER HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
12.1. You agree to hold harmless and indemnify MemCachier, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners, (collectively “MemCachier and Partners”) from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of the Service, (c) your violation of applicable laws, rules or regulations in connection with the Service, or (d) your Content or your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, MemCachier will provide you with written notice of such claim, suit or action.
13. Policies Regarding Copyright and Trademarks
13.1. You agree to set up a process to respond to notices of alleged infringement that comply with the United States’ Digital Millennium Copyright Act (“DMCA notices”). It is MemCachier’s policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down content in your Application or, if necessary, the Application itself upon receipt of a valid DMCA notice.
13.2. Any use of MemCachier’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features must be in compliance with the Terms.
14. Other Content
14.1. The Services may include hyperlinks to other web sites or content or resources or email content. MemCachier may have no control over any web sites or resources which are provided by companies or persons other than MemCachier.
14.2. You acknowledge and agree that MemCachier is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
14.3. You acknowledge and agree that MemCachier is not liable for any loss or damage which may be incurred by you or users of your Application as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
15. Changes to the Terms
15.1. MemCachier may make changes to the Terms from time to time. When these changes are made, MemCachier will make a new copy of the Terms available at http://www.memcachier.com/legal/tos/.
15.2. You understand and agree that if you use the Service after the date on which the Terms have changed, MemCachier will treat your use as acceptance of the updated Terms.
16. General Legal Terms
16.1. The Terms constitute the whole legal agreement between you and MemCachier and govern your use of the Service (but excluding any services which MemCachier may provide to you under a separate written agreement), and completely replace any prior agreements between you and MemCachier in relation to the Service.
16.2. There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
16.3. If MemCachier provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
16.4. You agree that MemCachier may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Service. If you have provided MemCachier with your email address, MemCachier has the right to send you any notices required by law by email instead of by regular mail.
16.5. You agree that if MemCachier does not exercise or enforce any legal right or remedy which is contained in the Terms (or which MemCachier has the benefit of under any applicable law), this will not be taken to be a formal waiver of MemCachier’s rights and that those rights or remedies will still be available to MemCachier.
16.6. MemCachier shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
16.7. The Terms, and your relationship with MemCachier under the Terms, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and MemCachier agree to submit to the exclusive jurisdiction of the courts located within the county of San Francisco, California to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that MemCachier shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
This document is an adaptation of the Google App Engine Terms of Service. We have modified this original work with permission under the Creative Commons Attribution 3.0 License. Google Inc. is not connected with, does not sponsor and does not endorse MemCachier or its use of the work.