Last Updated: 1/11/2022
Please read and review the following Terms carefully before using and/or downloading the Application Services. If You disagree with any part of the Terms then You may not access or use our Application Services. To the extent You choose to access our Application Services, You do so at Your own risk and initiative. You may use the Application Services for lawful purposes only and only in accordance with these Terms. You are solely responsible for obtaining and maintaining all necessary consents required for you to use the Application Services and provide any material or other information in relation thereto, and for complying with any and all laws, rules, regulations and other obligations that may apply to your use of the Application Services, including any and all applicable privacy laws.
By clicking the download or install button, by downloading or installing the upgrade of the App, or by accessing or using our Application Services in any manner, You declare, that You have read and agree to be bound by the Terms. These Terms, entered into by You and the Provider (hereinafter collectively as “Parties”), constitutes the entire understanding between Parties. Parties are mutually bound by the Terms from the date You use and/or download our Application Services.
The following Terms govern the entire use of our Application Services provided by the Provider to the Customer and any contracts between Parties. These Terms were written in English. To the extent any translated version of these Terms conflicts with the English version, the English version shall prevail. The Terms shall be always interpreted in accordance with the rules of grammatical and legal interpretation and with its content.
Other used general terms:
- Apple means company Apple Inc., Apple Distribution International Ltd. Or other Apple´s subsidiaries
- the App Store platform means online distribution platform, developed and maintained by the company Apple Inc., for mobile apps on its iOS operating system
- Apple ID account represents an account required for accessing Apple Inc. ecosystem and its services, content, and products
- Apple Media Services Terms and Conditions are an integral part of this Agreement (https://www.apple.com/legal/internet-services/itunes/)
Each transaction is an electronic contract between the Customer and the Provider, in that case, the Provider may be represented by Apple in matters specified in Apple Media Services Terms and Conditions. However, if You are a Customer of Apple Distribution International Ltd. and You acquire an App, Apple Distribution International is the merchant of record; this means that you acquire the Content from Apple Distribution International Ltd., but it is licensed by the Provider. the Customer acknowledges and agrees that Apple is the third-party beneficiary of the Agreement and has the right to enforce the Agreement against the Customer.
- To use our Application Services, the Customer needs compatible hardware, software (latest version recommended), Internet access (fees may apply) and fulfill other technical or requested requirements stated by the Provider in these Terms, via the Application Services or other tools. Our Application Services’ performance may be affected by these factors.
- The Customer must be 13 years or older to use our App. By accepting the Terms, the Customer declares, that he is older than 13 years old, and is solely responsible for any damage or loss that the Provider may suffer because of his untruthful declaration. Children under the age of majority should review this Agreement with their parent or guardian to ensure that the child and parent or legal guardian understand it.
- The Customer warrants that (i) he/she is 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 (ii) he/she is not listed on any U.S. Government list of prohibited restricted parties.
- The Customer is further solely responsible for any activity that occurs under his Apple ID, e-mail or telephone number and for any content made available, submitted, published, transmitted or displayed by him on, through or with the Application Services, particularly for all information, audio, visual and audiovisual materials or works, even if they capture or record third parties (hereinafter as “the Customer Data”).
- The Application Services are created to provide via third party (Apple) particularly (i) editing and sharing of photos and other imagery (hereinafter collectively as “Product” or “Products”).
II. License, Access Rights, Restrictions
- The Provider grants to the Customer and the Customer accepts a personal, non-exclusive, non-transferable, non-sublicensable, and revocable license to use the Application Services for the Customer’s internal use and other accounts associated with the Customer via Family Sharing or volume purchasing (hereinafter as “License”). The Customer’s right to use the Application Services is limited by all terms and conditions herein. To avoid any doubts, the Customer is aware of and agrees that except for this License granted to the Customer, the Provider and his Licensors retain all rights, titles and interests in and to the Application Services, including all related intellectual property rights.
- The Customer shall (i) provide accurate, current, and complete information when asked by the Application Services for such information (ii) maintain and promptly update any provided information, (iii) maintain the security of unauthorized access into the App (e.g. by setting up a password to get into his device) and accept all risks of unauthorized access to his device and/or the App, and/or (iv) promptly notify the Provider if he discovers or otherwise suspects any security breaches into his device and/or the App. the Customer is responsible and liable for the acts or omissions of any authorized or unauthorized third person who accesses the App or uses the Application Services.
- The Customer shall not (i) rent, lease or sublicense access to the App to any third person, (ii) infringe any intellectual property or other proprietary rights of any third person, while using the App, and/or (iii) violate any right or duty owed to any third person while using the App. The Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations.
- The Customer hereby grants to the Provider and the Provider accepts a worldwide, timeless and non-exclusive license to access, copy, distribute, process, and use the Customer Data solely for the purpose of (i) providing the Product to the Customer, and/or (ii) improving any component of the App.
- The Provider hereby declares that the Customer Data may be provided to and processed by the third parties, who cooperate with the Provider (hereinafter as “Suppliers”). The Customer must comply with applicable third-party terms of agreement (Apple) when using Application Services. the Customer Data are shared with third parties solely for the purpose of providing the Application Services.
- The Provider does not provide any equipment required to access the Application Services. The Customer is responsible for all fees charged by the third parties related to the Customer’s access to the Application Services and Products (e.g. charges by Internet Service the Providers, by Cell Phone & Service the Providers).
- The Provider reserves the right to restrict, suspend, or terminate access to the Application Services at any time in his sole discretion if in the Provider’s determination the Customer uses the Application Services in a manner that violates applicable laws or the Terms.
- The Provider does not guarantee the continued functionality of, and at the same time, the Provider reserves the right to change, discontinue, delete and/or deprecate, at any time and in his sole discretion, the Application Services and all product features, that made be made available to or accessible by the Customer, without any prior notice to the Customer.
- From time to time, the Provider may develop Beta Services (a product, service, or functionality provided by the Provider that may be available to the Customer to try at the Customer’s option at no additional charge) available to the Customer at no charge. The Customer may choose to utilize such Beta Services in the Customer’s sole discretion. Beta Services are intended for evaluation purposes and not for production using, are not fully supported and are provided on an “as-is” and “as available” basis without any warranty, support or maintenance. The Provider has no liability for any harm or damage arising out of or in connection with Beta Services.
III. Products and Services
- The Provider offers via a third party (Apple) the following Application Services: (i) editing and sharing of photos and other imagery. All information stated on the App Store platform´s page https://apps.apple.com/app/id1535600312 is an integral part of these Terms.
- Products are billed in advance via the App Store platform according to the prices stated on the App Store platform´s page and Payments Terms (Article IV. of the Terms) and is provided to a purchasing Apple ID for a selected period. The Customer may cancel the Product at any time via his/her iTunes account, however, the Provider has, in that case, no duty and possibility to refund the Customer already paid price, since the payment is handled by the third party (Apple) and its App Store platform.
- Warranty & Refunds. The Provider is responsible for providing maintenance, support services and product warranties. If (i) technical problems prevent or unreasonably delay delivery of Product, (ii) the App is not accessible due to technical problems, or (iii) Product has essential defects despite the guarantee of the Provider, an exclusive and sole the Customer’s remedy concerning the provided Products may be a reimbursement of the price paid, as determined by the Provider or the third party (Apple), or a replacement of the Product. The Provider may refuse a refund request if he finds evidence of fraud, refund abuse, or other manipulative behavior that entitles the Provider to a corresponding counterclaim. If You have any request or claim concerning the Warranty & Refunds, please contact Apple or us at any time via e-mail TOP9@apptoro.agency. Other rules are governed by the relevant law regulation. All claims arising out the Application Services provided to the Customer via Apple shall be applied to Apple as the agent of the Provider based on the contact information in an issued invoice.
- The Provider may modify his pricing list at any time and add new services for additional fees and charges or amend fees and charges for the Products and/or the Application Services, at any time and in his sole discretion.
IV. Payments Terms
- When the Customer purchases any Product, the Customer agrees to pay directly to the Provider or via its Supplier all amounts specified in the order. The Customer will be charged via credit card, debit card or via the App Store platform.
- Under recent legislation concerning data privacy (General Data Protection Regulation), many types of data have been designated as personal data to catch up with the nature of the digital age. Personal data means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name and surname, an identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. When the Customer installs or downloads the App, the Provider may collect a variety of non-personal data of technical nature (the version of the operating system, device model, device language, time zone, etc.). This data allows the Provider f.e. to improve the App´s performance and resolve potential technical issues. The Provider may collect also other kinds of data that are considered Personal Data e.g.: Instagram username and password, contact information (e-mail address and other information supplied to the Provider in accordance with his support service), device information (unique device identifier), etc. (hereinafter collectively as “Personal Data”), etc. These are used primarily for the delivery of Services purchased via the App.
- The Provider uses the Personal Data (i) to provide the Application Services, (ii) to maintain and/or (iii) to develop the Application Services. In cases prescribed by law, the Provider requires the Customer’s consent for processing the Personal Data.
- The Personal Data are proceeded both in an automated and a manual way and are stored for as long as is necessary to provide the Customer with the App (for the duration of the Customer’s use of the App) and for a reasonable period of time after the last use of the App, not exceeding five years.
- The Customer hereby further agrees not to use the Application Services to send sensitive data about him or a third person where unauthorized disclosure could cause material or immaterial damage, severe harm or impact to the Provider, any data subjects and/or thirds parties. Sensitive data includes, but is not limited to: health data, genetic data, biometric data, data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, data concerning sexual orientation. The Customer hereby further agrees to not use Services for personally identifiable information knowingly collected from children under the age of 13 from online services designated for children.
- The App is not designated for children. By downloading or installing the App, the Customer declares that he is older than 13 years old and is solely responsible for any damage or loss that the Provider may suffer because of his untruthful declaration.
- Access to Personal Data. The Customer has the right to obtain from the Provider confirmation as to whether or not the Personal Data concerning him are being processed, and where that is the case, access to the Personal Data and the following information: the purposes of the processing, the categories of the Personal Data concerned the recipient to whom Personal Data has been or will be disclosed; the envisaged period for which the Personal Data will be stored (if not possible the criteria used to determine that period), the existence of automated decision-making, including profiling, and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the Personal Data subject.
The Customer has the right to request from the Provider rectification or erasure of the Personal Data (Right to be forgotten) or restriction of processing of the Personal Data concerning the Customer or to object to such processing. The Customer has also the right to lodge a complaint with a supervisory authority (in European Union) and the right to the Personal Data portability.
Right to rectification. The Customer shall have the right to obtain from the Provider without undue delay the rectification of inaccurate the Personal Data concerning him or her. Taking into account the purposes of the processing, the data subject shall have the right to have incomplete Personal Data completed, including by means of providing a supplementary statement.
Right to be forgotten. The Customer shall have the right to obtain from the Provider the erasure of the Personal Data concerning him without undue delay and the Provider shall have the obligation to erase the Personal Data without undue delay where one of the following grounds applies: (i) the Personal Data are no longer necessary in relation to the purposes for which they were collected or otherwise processed, (ii) the Personal Data has been unlawfully processed, (iii) the Personal Data have to be erased for compliance with a legal obligation in the European Union or Member State law to which the Provider is subject, (iv) the Customer withdraws consent on which the processing is based and there is no other legal ground for the processing, and/or (v) the Customer objects to the processing and there are no overriding legitimate grounds for the processing. The Provider will not erase the Personal Data, if the processing of the Personal Data is necessary for (i) the exercising the right of freedom of expression and information, (ii) the compliance with a legal obligation which requires processing by the European Union or Member State law to which the Provider is subject, (iii) the performance of a task carried out in the public interest or in the exercise of official authority vested in the Provider, (iv) the reasons of public interest in the area of public health, (v) the archiving purposes in the public interest, scientific or historical research purposes or statistical purpose in so far as the right to be forgotten is likely to render impossible or seriously impair the achievement of the objectives of that processing, or (vi) the establishment, exercise or defense of legal claims.
Right to Personal Data portability. The Customer shall have the right to receive the Personal Data concerning him, and which the Customer has provided to the Provider, in a structured, commonly used and machine-readable format and have the right to transmit those data to another controller without hindrance from the Provider to which the Personal Data has been provided. In exercising the Customer’s right to the Personal Data portability, the Customer shall have the right to have the Personal Data transmitted directly from one controller to another, where technically feasible.
- Confidential information means unless otherwise agreed herein, any information, knowledge, data, documentation (particularly technical documentation, drawing documentation, software documentation, hardware documentation), know-how, technical, economic, financial, business, strategic information, or any kind of information derived therefrom, in any form, tangible, or intangible, oral, or written, which was specified as a confidential or which represents a trade secret (hereinafter as “Confidential Information”).
- In consideration of the disclosure of Confidential Information Parties agree as follows (i) to hold the Confidential Information in strict confidence and to take all reasonable precautions to protect such Confidential Information, (ii) not to disclose any such Confidential Information to any third person, (iii) not to make any use whatsoever at any time of such Confidential Information except to evaluate internally its relationship with the disclosing party, (iv) not to use any such Confidential Information to the different purpose than allowed by the disclosing party, (v) not to create any derivate work from Confidential Information, (vi) to restrict access to the Confidential Information of its personnel, agents, and or consultants, if any, who have a need to have access and who have been advised of, and have agreed in writing to treat such Confidential Information in accordance with the Terms.
- Parties further agree that the duty of confidentiality shall not apply to any information that (i) is or becomes (through no improper or illegal action or inaction by the receiving party or with its cooperation) generally available to the public, (ii) was rightfully and in good faith disclosed to the receiving party by a third party, (iii) was independently developed by the receiving party without use of any Confidential Information of the disclosing party; or (iv) was required by law or court order.
VII. Warranties, Disclaimer of Warranties
- The Provider only warrants to the Customer that the Application Services will perform materially in accordance with the documentation that accompanies or is available via the Application Services. In that case, the Provider’s sole liability and the Customer’s only exclusive right and remedy for a breach of the foregoing warranty is for the Provider to correct or re-perform the nonconforming Application Service, unless otherwise agreed herein.
- The Customer warrants that he owns and has obtained all necessary rights, titles and consents to transfer the Customer Data to the Provider and his Suppliers or Processors (e.g. data center the Providers) to process such the Customer Data in accordance with the Terms.
- Use of the Application Services and Products provided by the Provider, including the Beta Services and all other related services (hereinafter as “Services”), is at the Customer’s sole risk. The Services are provided “as is” and “as available” basis with all faults and without any warranty of any kind. The Provider, his Suppliers, Processors and Licensors expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to, the implied indemnities and warranties of merchantability, fitness for a set purpose, title and non-infringement. Unless otherwise agreed herein, the Provider does not guarantee accuracy, completeness, or usefulness of his Services, and the Customer relies on such Services at the Customer’s own risk. Any material that the Customer accesses or obtains through the Provider’s Services, including the Customer Data, is done in the Customer’s own discretion and risk and only the Customer will be solely responsible for any damage caused to him or any third persons during the usage of the Services. No advice or information, whether oral or written, obtained by the Customer from the Provider or through or from the Services will create any warranty of the Provider not expressly stated in the Terms.
- The Customer acknowledges that the Provider has no obligation to monitor access to or use of the Services, but it has the right to do so if it chooses in order to secure and improve the Services, for fraud prevention, risk assessment, investigation, the Customer support and to ensure compliance with these Terms, or as it otherwise sees fit. The Provider reserves the right to refuse service, terminate accounts, disable any user identification code or password, remove or edit content, revoke your license, and otherwise terminate the Customer’s right to use the Services at any time in its sole discretion, for any or no reason, including, if in the Provider’s opinion you have failed to comply with any provision of these Terms or for any illegal or criminal behavior.
VIII. Limitation of Liability, Indemnification
- In no event will the Provider, his Suppliers, Processors and Licensors be liable for any direct, indirect, special, incidental, exemplary, and/or punitive damages arising out of or regarding the Terms or/and the Customer’s use of the Services, or for any damages associated with any loss of use, business, profits, or goodwill or other intangible losses of the Customer.
- Under no circumstances will the Provider’s aggregate liability for any and all claims hereunder exceed the amounts that the Customer has paid to the Provider for the Customer’s usage of the Products in 12 months prior to the Customer’s claim.
- Insofar as some states do not allow the exclusion or limitation of incidental or consequential damages, Parties hereby agree, that in case that applicable law prohibits any limitation of liability herein, such limitation will be automatically modified, but only to the extent to make the limitation compliant with applicable law.
- The Customer will defend the Provider, his Suppliers, Processors and Licensors from all third person claims, actions, suits, any costs, damages, expenses, and liability caused by the Customer’s usage of the Services, the Customer’s violation of any rights of a third person through usage of the Services.
IX. Termination, withdrawal
- The Customers-consumers may cancel/withdraw from the Agreement unless otherwise stipulated below within a period of 14 days (hereinafter as “period of notice”) commencing on the day of the conclusion of an Agreement or (i) receiving the goods (purchase agreements); (ii) receiving the last delivery (agreements for the purchase of several types of Products/delivery of several parts); or (iii) receiving the first delivery (ongoing contracts). Form of cancellation/withdrawal and more information about cancellation (withdrawal) are stated in Apple Media Services Terms and Conditions. Cancellation/withdrawal from the Agreement may be performed solely according to the Apple Media Services Terms and Conditions and towards to the entity named in the form for the cancellation/withdrawal stated in Apple Media Services Terms and Conditions. This entity is the representative of the Provider.
- The Customer-consumer cannot cancel/withdraw from an Agreement for the: (i) providing of Application Services performed by the Provider with the previous explicit consent of the Customer-consumer prior to the expiration of the period of notice; (ii) delivery of a digital content (delivered other than on a physical carrier with the previous explicit consent of the Customer prior to the expiration of the period of notice whereby the Provider underlines that an Agreement for the delivery of an on-line content cannot be withdrawn).
- The Customer-consumer is required to pay a full price for the Product already commenced to be provided under a canceled/withdrawn Agreement. The costs incurred in association with returning the Product (withdrawn agreements)/costs of returning the Product other than by ordinary post if the nature of such Product so precludes (canceled/withdrawn agreements negotiated away from business premises) are borne by the Customer-consumer.
- By the moment of installation of App or placing an order of Product, the Customer-consumer explicitly agrees to obtain an ordered Product prior to the expiration of the 14 days period of notice and is acknowledged, that in that case, he/she does not have right to cancel/withdraw from the Agreement.
- The Terms and contracts between Parties are governed by the laws of the Czech Republic. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
- The Provider may amend the Terms from time to time. If the Provider makes a change to the Terms, the Provider will notify the Customer by providing notice of the change (i) via the App, or (ii) at e-mail address that the Customer provided to the Provider. If the Customer does not agree to the modified terms, the Customer shall discontinue using the Application Services and uninstall the App from his device.
- All requests, questions or notices upon the Terms shall be delivered at the e-mail of the Provider TOP9@apptoro.agency, unless otherwise agreed herein.
- Any dispute arising out of or regarding the Terms, including any question regarding its existence, validity, or termination, shall be finally decided (i) between the Provider and the Customer-non-Consumer by the Arbitration Court attached to the Czech Chamber of Commerce and the Agricultural Chamber of the Czech Republic by three arbitrators appointed by the President of the Arbitration Court in accordance with the Rules of the Arbitration Court, (ii) between the Provider and the Customer-Consumer by the court of competent jurisdiction.
- If a consumer dispute between the Provider and the Customer-Consumer, that cannot be settled by agreement, arises out of or regarding the Terms, the Customer-Consumer may submit a proposal for an out-of-court settlement of such a dispute to a designated extrajudicial dispute resolution body, which is Czech Trade Inspection, Central Inspectorate - ADR Unit, with its represented seat at Stepanska 15, 120 00 Prague 2, email: email@example.com, web: adr.coi.cz.
- The Provider’s failure to enforce any right or provision in the Terms will not constitute a waiver of such right or provision unless acknowledged and agreed by the Provider in writing.
- If any provision of the Terms is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent, so the Terms will otherwise remain in full force and effect and enforceable.