Last Updated: 1/11/2022
1. Acceptance of the terms
1.2 Service is offered to users who are at least 13 years old and not a target of any sanction’s regime, and do not reside in, nor will access the Service from a country from which such access is prohibited under any applicable sanction’s regime or export control laws. By using the Service, you represent that you meet all of the foregoing requirements. If you do not meet these requirements, you must not access or use the Service. We reserve the right to limit the availability of the Service to any person, entity, geographic area, or jurisdiction at any time.
2.1. Upper case pronouns “We”, “Us” and “Our” refer to App Toro s.r.o., ID no. 06454097, with a registered seat at Viktora Huga 377/4, Smichov, 150 00 Prague 5, Czech Republic, incorporated under the laws of the Czech Republic and registered at Municipal Court in Prague under file no. C 282461.
2.2. Pronouns “you” and “your” refer to you as a user of TOP 9 (the "Service"). If you are using the Service on behalf of a legal entity, then you, as an individual, represent that you have authority to bind that entity to the Agreement and “you” and “your” also refer to that entity.
2.3. ”Affiliate” of a person is any person that controls, is controlled by, or is under common control with, such person. The term “control” (“controlled by”) means the power to direct or cause direction of management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.
2.4. ”Device” is your mobile phone, tablet, computer, or other device by or through you use the Service.
2.5. ”Documentation” are documents that accompany or are available via the Service and describe the features of the Service, requirements for its use, support, or maintenance.
2.6. ”Premium Service” is a paid Service, either a subscription or a product.
2.7. ”Resultant Data” are data related to your use of the Service that are used by Us in an aggregate and anonymized manner, including statistical and performance information related to operation of the Service.
2.8. ”Third-Party Materials” are materials, documents, data, products, Service, or software that are not Ours, including open-source software.
2.9. ”User Contribution” include, without limitation, any instructions, images, photos, drawings, videos, documents, texts or other materials and content that you upload to the Service or that We receive by or through the Service. User Contribution does not include Resultant Data.
3.1. Use. Subject and conditioned on your compliance with the Agreement, We hereby grant you a limited, non-exclusive, non-transferable license to use the Service during the term of the Agreement, solely for use by you in accordance with the Agreement. Such use is limited to your internal use.
3.2. Reservation of Rights. You acknowledge and agree that the Service is provided under license, and not sold, to you. You do not acquire any ownership interest in the Service under the Agreement, or any other rights thereto other than to use the Service in accordance with the license expressly set forth in Section 3.1.
3.3. User Contributions. BY ENTERING INTO THE AGREEMENT OR, AS THE CASE MAY BE, BY CREATION OF SUCH USER CONTRIBUTION, YOU IRREVOCABLY ASSIGN TO US, AND WE HEREBY ACCEPT, ALL OF YOUR OWNERSHIP, RIGHT, TITLE, AND INTEREST IN AND TO EACH USER CONTRIBUTION. The rights assigned pursuant to this Section 3.3 include, without limitation all copyrights, trademarks, trade secrets, and other intellectual property rights and all other rights that may hereafter be vested relating to User Contributions, arising under any jurisdiction’s laws, together with all national, foreign, state, provincial, and common law registrations, applications for registration, and renewals and extensions thereof; all goodwill associated with User Contributions; and all benefits, privileges, causes of action, and remedies relating to any of the foregoing, whether before or hereafter accrued (including without limitation the exclusive rights to apply for such registrations, renewals, and/or extensions, to sue for all past infringements or violations of any of the foregoing, and to settle and retain proceeds from any such actions). In exchange for this assignment, We hereby grant You a nonexclusive, perpetual, royalty-free, nonassignable, non-sublicensable worldwide license to reproduce, modify, publicly display, and publicly perform User Contributions within the Service.
3.4. Third-Party Materials. Service may display, include, or make available Third-Party Materials. You acknowledge and agree that We are not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. We do not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.
3.5. Updates. We may from time to time in Our sole discretion develop and provide updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features. Updates may also modify or delete in their entirety certain features and functionality. You agree that We have no obligation to provide any updates or to continue to provide or enable any particular features or functionality. Based on your Device settings, when your Device is connected to the internet either the Service will automatically download and install all available updates; or you may receive notice of or be prompted to download and install available updates. You shall promptly download and install all updates and acknowledge and agree that the Service or portions thereof may not properly operate should you fail to do so. You further agree that all updates will be deemed part of the Service and be subject to all terms and conditions of the Agreement.
4. Use Restrictions
4.1 Use Restrictions. You may not, and may not permit any other person to, access or use the Service except as expressly permitted by the Agreement and, in case of Third-Party Materials, the applicable third-party license terms. You shall not in particular, but not exclusively:
a) use the Services as follows: (i) for pornographic, indecent, obscene, defamatory or other unlawful purposes; (ii) to engage in any internet activities that would violate the privacy rights of others, including to copy, store, access or use personally identifiable information about another registered user in a way that is inconsistent with the Terms; (iii) to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by Us in Our discretion, may harm Us or users of the Services or expose them to liability; (iv) to send harassing and/or threatening messages to others or to abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other person; or (v) to discriminate against or harass anyone on the basis of race, national origin, religion, gender, sexual orientation, disability, medical condition, marital status, age or gender identity, or otherwise engage in abusive or disruptive behavior,
b) copy, republish, display, distribute, transmit, sell, rent, lease, loan or otherwise make available in any form or by any means all or any portion of the Service,
c) modify, create compilations or derivative works of the Service, remove, or alter trademarks, Documentation, disclaimers, or notices from Service,
d) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Service or any part thereof,
e) bypass or breach any security or rights management used by the Service or access or use the Service other through the use of your own then valid access credentials,
f) upload, transmit, or otherwise provide to or through the Service, any information or materials that are unsolicited advertisements or content (i.e., “spam"), unlawful or contain or activate any harmful code (software, hardware, or other technology, including malware, the purpose or effect of which is to permit unauthorized access to, disrupt or otherwise harm any computer, software, hardware, or network; or prevent any other customer from accessing or using the Service),
g) damage, disable, interfere with, or otherwise harm the Service, or Our provision of Service,
h) access or use the Service for purposes of competitive analysis of the Service development, provision, or use of a competing service or product or any other purpose that is to Our commercial disadvantage,
i) access or use the Service in association with any safety-critical systems, or other systems in which the use or failure of the Service could lead to personal injury or physical or property damage, or
j) access or use the Service in manner or for purpose that infringes any intellectual property right or other right of any third party or that violates any applicable law.
4.2. Corrective Action. If You become aware of any actual or threatened activity prohibited by Section 4.1, You must immediately take all reasonable measures within their respective control that are necessary to stop the activity and to mitigate its effects (including by discontinuing and preventing any unauthorized access to the Service and erasing data to which any of them have gained unauthorized access) and notify Us of any such actual or threatened activity.
4.3. Your Responsibility. You are solely responsible for:
a) maintaining and operating the Device in accordance with the requirements set out in the Documentation. If you do not meet these requirements, the Service may not function properly or at all,
b) legality of processing of User Contributions. In particular, You are responsible for ensuring that You are entitled to provide Us with all User Contribution and that Our use and processing of User Contribution for the purpose of providing the Service does not infringe any third-party rights, in particular intellectual property rights or privacy rights or obligations under any law or regulation. You are required to inform persons whose personal and other data You transfer to Us of such transfer, and to obtain consent to such transfer of personal data where necessary,
c) use, security, and protection of access details from unauthorized use; and
d) all access to and use of the Service through the Device, your Apple ID, e-mail or telephone number and for any content made available, submitted, published, transmitted or displayed by you on, through or with the Service, particularly for all information, audio, visual and audiovisual materials or works, even if they capture or record third parties.
e) all results obtained from access or use of the Service and all conclusions, decisions and actions based thereon
f) paying all roaming charges, data charges, text message (SMS) charges, plan charges, and any other possible charges that result because of the use of Service on Your Device. You agree to pay all charges to your carrier and that We are not responsible for paying any charges You incur from your carrier.
5. PREMIUM SERVICE
5.1. Free version. You may use the basic version of the Service or other trial versions of below defined services free of charge. Basic version of the Service may offer limited functionality or features. If you are using the Service free of charge, you are not entitled to claim any refunds for limited functionality of the Service.
5.2. Prices. All prices are subject to change without notice. The price charged for Services will be the price in effect at the time the order is placed. Price increases will only apply to orders placed after such changes.
5.3. Subscription. If you purchase a subscription, you agree that You will be billed in advance on a recurring and periodic basis. Billing cycles are set on a weekly, monthly or a yearly basis depending on the subscription You select. At the end of each billing cycle, your subscription will automatically renew under the same conditions unless you cancel it. You may cancel the subscription renewal through your account settings on your Device (if You use Our service through the app on Your mobile device). You may upgrade the subscription and corresponding fee obligations at any time.
5.4. Product. If you purchase a product, you agree that You will be billed in advance on a one-time basis. Products may include access to additional content, features, consumables, or credits. The sum of the fees paid by you to Us that have not yet been used to purchase the Premium Service constitutes your credit. The credit can only be used to pay the price for the Premium Services. Upon purchase of a Premium Service, the price of the Premium Service will be deducted from your credit. The validity of the credit is 12 months from the date the amount is created. The credit shall be used in time from the earliest amount created. Credit balances will expire as of the 366th day after creation. In the event of cancellation of your account for any reason, We shall not be obliged to return the balance of the credits to you (the fact that you have not used the full amount of the credit shall not affect this) and the credit balance in your account shall expire without refund.
5.5 Fees. You shall pay Us the fees in accordance with the currently effective price list available within the Service immediately after the order has been submitted. We may change the price list, institute new fees, or increase the fees for next renewal term by providing written notice to you prior to the commencement of such term. The obligation to pay the fees is not tied to your actual use of the Premium Service. In the event that You do not use the Premium Service, this shall not affect Our right to payment of the fees in full. Unless expressly set forth herein, the fees are non-cancelable and non-refundable.
5.6. Payment. You shall make all payments via the App Store platform, the use of which is governed by the Apple Media Services Terms and Conditions.
6. DISCLAIMER OF WARRANTIES
6.1. You understand and agree that We do not guarantee or warrant that information available in connection with the Service will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy Your particular requirements for anti-virus protection and accuracy of data input and output and for maintaining a means external to Our Service for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICE OR ANY ITEMS OBTAINED THROUGH THE SERVICE OR TO YOUR DOWNLOADING OF ANY MATERIAL PROVIDED THROUGH THEM, OR ON ANY WEBSITE LINKED TO THEM.
6.2. YOUR USE OF THE SERVICE, ITS CONTENT, AND ANY ITEMS OBTAINED THROUGH THE SERVICE IS AT YOUR OWN RISK. THE SERVICE AND ITS CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER WE NOR ANY PERSON AFFILIATED WITH US MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANYONE AFFILIATED WITH US REPRESENTS OR WARRANTS THAT THE SERVICE OR ITS CONTENT OR ITEMS OBTAINED THROUGH THE SERVICE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICE OR ANY ITEMS OBTAINED THROUGH THE SERVICE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
6.3. TO THE FULLEST EXTENT PROVIDED BY LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR FITNESS FOR PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE HAVE NO OBLIGATION TO INDEMNIFY, DEFEND, OR HOLD YOU HARMLESS, INCLUDING WITHOUT LIMITATION AGAINST CLAIMS RELATED TO PRODUCT LIABILITY OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
6.4. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
7. Limitation of Liability
7.1. EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED UNDER THE SERVICELICABLE LAW, IN NO EVENT WILL WE OR ANY OF OUR AFFILIATES, LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICE; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICE; (e) LOSS OF GOODWILL OR REPUTATION; (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER YOU WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
7.2. CAP ON MONETARY LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER THE APPLICABLE LAW, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF US AND OUR AFFILIATES, LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED 100 % THE TOTAL AMOUNTS PAID TO US UNDER THIS AGREEMENT IN THE 1 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7.3. THE PROVISIONS OF THIS SECTION 7 DO NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
8.1. Your Indemnification. You shall indemnify, defend, and hold harmless Us and Our Affiliates, and each of our respective officers, directors, employees, and agents from and against any and all loss, damage, claim, action, judgment, settlement, interest, penalty, fine, costs, or expenses, including attorneys’ fees and the costs of enforcing any right to indemnification hereunder incurred resulting from any action by a third party that arise out of or result from, or are alleged to arise out of or result from:
a) intellectual property infringement, violation of privacy, or misappropriation of trade secrets related to Our use or exploitation of User Contributions;
b) Your use or misuse of materials or of other information obtained from the Service; or
c) negligence or more culpable act or omission (including recklessness or willful misconduct) by you or any third party on behalf of you, in connection with the Agreement.
9. APPLE MINIMUM TERMS OF DEVELOPER EULA
9.1. Acknowledgement. We and you acknowledge that the Agreement is concluded between you and Us only, and not with Apple, and We, not Apple, are solely responsible for the Service and the content thereof. In case of any conflict between the terms of the Agreement and the Apple Media Services Terms and Conditions as of the Effective Date (which We acknowledge We have had the opportunity to review), the Apple Media Services Terms and Conditions shall prevail.
9.2. Scope of License. The license granted to You for the Service is limited to a non-transferable license to use the Service on Apple-branded Products that the You own or control and that fulfill the applicable minimum requirements and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that such Service may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing.
9.3. Maintenance and Support. We are solely responsible for providing any maintenance and support services with respect to the Service, as specified in the Terms, or as required under applicable law. We and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service.
9.4. Warranty. We are solely responsible for any product warranties, whether expressed or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Premium Service to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Our sole responsibility.
9.5. Product Claims. We and you acknowledge that We, not Apple, are responsible for addressing any claims of the you or any third party relating to the Service or the your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with Service use of the HealthKit and HomeKit frameworks. Agreement does not limit Our liability to you beyond what is permitted by applicable law.
9.6. Intellectual Property Rights. We and you acknowledge that, in the event of any third-party claim that the Service or your possession and use of Service infringes that third party’s intellectual property rights, We, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
9.7. Legal Compliance. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and you is not listed on any U.S. Government list of prohibited or restricted parties.
9.8. Developer Name and Address. You may direct any questions, complaints or claims with respect to the Service to the following: App Toro s.r.o., Viktora Huga 377/4, Smichov, 150 00 Prague 5, Czech Republic; email@example.com.
9.9. Third Party Terms: You must comply with applicable third-party terms of agreement when using the Service.
9.10. Third Party Beneficiary. We and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the Agreement, and that, upon the Your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against the you as a third-party beneficiary thereof.
10. Term and Termination
10.1. You acknowledge and agree that the We have no obligation to monitor access to or use of the Service, but We have the right to do so if We choose in order to secure and improve the Service, for fraud prevention, risk assessment, investigation, the customer support and to ensure compliance with these Terms, or as We otherwise sees fit. if in the Provider’s opinion you have failed to comply with any provision of these Terms or for any illegal or criminal behavior.
10.2. Suspension or Termination. We reserve the right to refuse service, terminate accounts, disable any user identification code or password, remove or edit content, revoke your license, and otherwise terminate your right to use the Service without incurring any resulting obligation or liability at any time in Our sole discretion, for any or no reason, including if:
a) We receive a judicial or governmental request or order that requires Us to do so,
b) We believe that you have failed to comply with the Agreement or used the Service beyond the scope of rights granted or for a purpose not authorized under the Agreement; or that you have been, or is likely to be involved in fraudulent or unlawful activities,
c) you do not pay the fees when due.
10.3. Surviving Terms. The rights and obligations of the parties in the Agreement that, by nature, should survive termination or expiration of the Agreement, will survive any expiration or termination of the Agreement.
11. Final provisions
11.2. Assignment. Neither of us may assign or otherwise transfer any of its rights or obligations under the Agreement, without prior written consent of the other party, provided that We may assign the Agreement as a whole without your prior written consent to any Affiliate.
11.3. Force Majeure. In no event will We be liable for any failure or delay in performance of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Our reasonable control, including acts of God, flood, fire, earthquake, war, terrorism, cyber-attack (including DDoS), invasion, embargoes, strikes, passage of law, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. We may terminate the Agreement if a force majeure event continues for a period of 30 days or more.
11.4. Amendment. We may revise and update the Terms from time to time in Our sole discretion. All changes are effective on the indicated date and apply to all access to and use of the Service thereafter. Your continued use of the Service following their term of effectiveness means that you accept and agree to the changes. You are expected to check the Terms from time to time so you are aware of any changes, as they are binding on you.
11.5. Notices. The requirement of written form is met if the electronic text with a simple electronic signature is delivered to the e-mail address of the other Party, or by other electronic means agreed by the parties.
11.6. Severability. If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, we shall negotiate in good faith to modify the Agreement so as to effect the original intent to the greatest extent possible.
11.7. Governing Law; Submission to Jurisdiction. Agreement is governed by and constructed in accordance with the internal laws of the Czech Republic without giving effect to any choice or conflict of law provision. Any legal suit, action, or proceeding arising out of or related to the Agreement will be instituted exclusively in the courts of the Czech Republic, and each of us irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.