Cleanmymac Beta Test Agreement
THIS AGREEMENT AND ANY INTERACTION WITH CLEANMYMAC IS STRICTLY CONFIDENTIAL. ANY BREACH THE CONFIDENTIALITY NATURE OF THE AGREEMENT WILL RESULT IN SEVERE CONSEQUENCES FOR THE PARTY IN BREACH.
By accepting this CleanMyMac Beta Test Agreement (this “Agreement”) You, as a Customer (the “Customer”), agree to be bound by this Agreement of CleanMyMac Beta Version application (the “CMM”), owned and operated by MacPaw Way Ltd., a company incorporated in the Republic of Cyprus under company registration number 428214, and whose address is at 6 Maximou Michailidi Str, Maximos Plaza Tower 3, 1st floor, Flat/Office 101, 3106, Limassol, Cyprus (“MacPaw”).
Your use of the CMM is subject to your acceptance and compliance with this Agreement. "Use" or "using" means to access, install, download, copy, or otherwise benefit from using the functionality of the CMM in accordance with the documentation. If you do not agree to this Agreement, do not use the CMM. Each time you access or use the CMM, the current version of this Agreement will apply.
THIS IS A LEGALLY BINDING AGREEMENT. IF YOU DO NOT UNDERSTAND THIS AGREEMENT OR DO NOT AGREE TO BE BOUND BY IT, YOU MUST IMMEDIATELY LEAVE THE CMM AND YOU ARE NOT AUTHORIZED TO ACCESS OR USE ANY OF THE SERVICES OR CMM FUNCTIONALITY.
By accepting this Agreement, the Parties agreed to establish their relations as follows:
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Definitions
1.1. “Activation Code” means a set of numbers and/or letters provided by MacPaw to the Customer to activate CMM. The Activation Codes are sent only to the current users of the other versions of CleanMyMac, who gave their consent to receive the offers from MacPaw and received the email invitation from MacPaw to try CMM, and who has made an active action via such email invitation (as will be stated in the email) to show the interest in trying the CMM. Each email can receive not more than 1 Activation Code. Activation Code can be activated up to 5 times only to avoid activation errors (if any).
1.2. “Affiliate” means any entity that controls, is controlled by or is under common control with a party, whereas "control" means the ability to direct the management and policies of an entity.
1.3. “Beta test version of CMM” means the experimental version of CMM, that is provided to a limited number of current users of the CleanMyMac X, and includes almost all of the features of the finished application, but in which development is not completed yet, and the application still might have some errors.
1.4. “Customer” means a natural person who is a current user of the other versions of CleanMyMac, who gave their consent to receive the offers from MacPaw; received the email invitation from MacPaw to try CMM, and who has made an active action via such email invitation (as will be stated in the email) to show the interest in trying the CMM.
1.5. “CMM” means beta version of CleanMyMac application, new version, which is a software package of MacPaw that performs a specific function directly for an end user, and includes contents of the downloads, files, disk(s), CD-ROM(s) or other media, including but not limited to (A) registration information, i.e. Activation Code which is unique for Customer; (B) related explanatory written materials or files ("Documentation"); and (C) Software setup files and code samples (if any); and (D) any upgrades, modified versions, updates, additions, and copies of the Software, if any, provided to You by Us now or in the future (collectively, "Updates"). The function of CMM is to help you keep the Devices in order by screening the health state of Devices, files, deleting system junk; unwanted, duplicated or similar files; and malware, and providing other technical possibilities to make the work of Devices speedier and more secure.
1.6. “Device” means any device that is owned by the Customer, and a Beta test version of CMM is installed on it.
1.7. “End Date” means the date of termination of access to CMM Beta Test Version, and, therefore, termination of this Agreement, namely June 14th 2024 (inclusive).
1.8. “Effective Date” means the date this Agreement is accepted by a party.
1.9. “Services” means services or features provided by MacPaw to the Customer through the CMM, namely screening the health state of Devices, carrying out automation screening of Devices, detecting malwares, unwanted apps, system junks on Devices, verify the performance of the Device, deleting unneeded files, using the app's assistant, etc. The Services are identified as alpha, beta, preview, early access, test or evaluation, or words or phrases with similar meanings, and can be modified, changed, updated anytime by MacPaw during term of access to CMM .
1.10. “Service Limits” means the number of tries of the Customer to use the Activation Code of the CMM, the number of Customers, the number of devices, or other limits on the Customer's use of the Services (if any) indicated in this Agreement and in the CMM.
1.11. “Third Party Request” means a request from a third party for records relating to the Customer's use of the Services. Third Party Requests may include valid search warrants, court orders, or subpoenas, or any other request for which there is written consent from Customer, or their authorized representative, permitting a disclosure.
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Subject matter of the Agreement
2.1. Agreement governs access to and use of CMM and Services by the Customer on a free basis.
2.2. The Customer acknowledges and agrees that:
(a) CMM is not an official product and has not been commercially released for sale by MacPaw;
(b) CMM may not operate properly, be in final form, or be fully functional;
(c) CMM may contain errors, design flaws, or other problems;
(d) it may not be possible to make CMM fully functional;
(e) the information obtained using CMM may not be accurate and may not accurately correspond to information extracted from any database or other source;
(f) use of CMM may result in unexpected results, loss of data or communications, project delays, or other unpredictable damage or loss;
(g) MacPaw is under no obligation to release a commercial version of CMM;
(h) MacPaw has the right unilaterally to abandon development of CMM, at any time and without any obligation or liability to the Customer;
(i) MacPaw reserves the right to continually test various aspects of CMM and Services, including but not limited to MacPaw website, software, user interfaces, service levels, plans, promotional features, and pricing;
(j) Services may not be supported and may be changed at any time without any notice; and
(k) MacPaw will have no liability arising out of or in connection with Services that are used at the risk of the Customer.
The Customer acknowledges and agrees that it should not rely on CMM for any reason.
The Customer is solely responsible for maintaining and protecting all data and information that is retrieved, extracted, transformed, loaded, stored or otherwise processed by the CMM. The Customer will be responsible for all costs and expenses required to backup and restore any data and information that is lost or corrupted as a result of the Customer's use of the Software.
2.3. Customer agrees that MacPaw may contact Customer to obtain feedback regarding Services.
2.4. Customer agrees to: (i) and hereby does, assign to MacPaw all right, title, and interest in any feedback; and (ii) provide MacPaw with any reasonable assistance necessary to document and maintain MacPaw's rights in the feedback. Feedback may include oral or written comments, answers to questionnaires, suggestions, error reports, and analysis.
2.5. Services are confidential until officially launched by MacPaw. Customer undertakes to take reasonable measures to keep information regarding CMM and Services confidential, including at least those measures Customer takes to protect its own confidential information of a similar nature. Customer will not disclose information regarding CMM and Services to any third parties, and will keep new features and functionality confidential until officially launched by MacPaw. Customer may disclose information regarding the CMM and Services to the extent required by law or regulation if Customer gives MacPaw reasonable advance written notice, to the extent permitted, so MacPaw can seek to prevent or limit the disclosure. In case of violation by the Customer of this obligation of confidentiality, the Customer will face the responsibility prescribed in section “Confidentiality”.
2.6. Customer acknowledges and agrees that immediately after the End Date its access to CMM will be terminated. The Customer undertakes to delete CMM and all supportive materials immediately after the End Date either through the functionality provided in CMM, or through the functionality provided in other versions of CleanMyMac application (if any).
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Use of Services
3.1. After downloading the CMM and acceptance of this Agreement, the Customer will receive the Activation Code.
3.2.After successfully inserting the Activation Code to the CMM, MacPaw will enable the Customer to access and use the functionality of CMM. Please be aware that MacPaw verifies whether the Customer used previous versions of CleanMyMac, and grants access to CMM only to the existing users of previous versions of CleanMyMac.
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License
4.1. MacPaw as the licensor grants to particular Customer as the licensee a limited, non-exclusive, revocable license to use CMM during the term of this Agreement.
4.2. The CMM is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. MacPaw reserves all rights not expressly granted to Customer. MacPaw retains the ownership of the copyright in and to the CMM and its beta version.
4.3. The license to limited use of CMM cannot be transferred by the Customer to third parties.
4.4. The license for use of CMM under this Agreement is granted on the free-of-charge basis.
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Customer's Rights and Obligations
5.1. Customer is responsible for (a) using CMM only by themselves, and not transferring the access to CMM (including Activation Codes) to third parties; (b) ensuring that any and all use of CMM and the Services complies with this Agreement and applicable laws. MacPaw shall not be responsible for actions of Customer during their use of CMM and Services.
5.2. Customer acknowledges and agrees that prior to using the Services, MacPaw will require each Customer to accept the then-current standard Privacy Policy, and such Privacy Policy will govern each Customer's use of MacPaw's CMM and Services. Customer acknowledges that a violation of this Agreement and/or Privacy Policy as an integral part thereof by a Customer may result in the termination of such Customer's access to CMM and Services at the discretion of MacPaw. Customer shall not make any representation, warranty or guarantee for or on behalf of MacPaw, or otherwise obligate MacPaw in any manner, to any third party.
5.3. Customer acknowledges that in order to receive access to the Services a Customer shall register to have access to CMM and the Services. In order to be registered as a Customer, Customer shall receive an invitation from MacPaw to a relevant e-mail. A Customer who received the invitation shall open the link contained in the invitation to complete the registration procedure. After finishing the said procedure a Customer will be provided with an Activation Code for the insertion to the CMM, provided through the link to the Customer's email. After that a Customer will receive an access to CMM and Services.M acPaw reserves the right to change the registration procedure without prior Customer's notification.
5.4. Customer shall prevent unauthorized use of CMM and immediately terminate any unauthorized use of which it becomes aware. Customer shall promptly notify MacPaw of any unauthorized use of or access to CMM or the Services of which it becomes aware.
5.5. Customer shall not take any action that would cause MacPaw to violate relevant data protection laws, the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act of 2010, or any other applicable anti-bribery, anti-corruption, or anti-money laundering law.
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Restrictions
6.1. Customer will not, and will ensure that third parties do not: (a) offer for sale or lease, sell, resell or lease access to CMM and the Services; (b) attempt to reverse engineer the CMM and Services or any software or other component used therein; (c) violate or circumvent any Service Limits of the Services (if any) or otherwise configure the Services to avoid Service Limits (if any); (d) use CMM and Services in a manner or under circumstances where use or failure of the Services could lead to death, personal injury or environmental damage; (e) use CMM and Services in a manner that would violate applicable laws protecting an individual's privacy rights, health or financial data, etc.; or(f) attempt to create a substitute or similar service through the use of, or access to, CMM and Services.
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Third Party Requests
7.1.If MacPaw receives a Third Party Request, MacPaw will make commercially reasonable efforts, to the extent allowed by law and by the Agreement of the Third Party Request, to: (i) promptly notify Customer of MacPaw's receipt of a Third Party Request; (ii) comply with Customer's commercially reasonable requests regarding its efforts to oppose a Third Party Request; and (iii) provide Customer with information or tools required for Customer to respond to the Third Party Request, if Customer is otherwise unable to respond to the Third Party Request. If MacPaw is prohibited from notifying Customer of a Third Party Request or Customer fails to promptly respond to any Third Party Request, then MacPaw may, but will not be obligated to do so, to the extent permitted by applicable law.
7.2. Customer acknowledges and agrees that, as between the parties, it is responsible for responding to a Third Party Request for records relating to Customer's use of CMM. If MacPaw receives such Third Party Request (including but not limited to criminal or civil subpoenas or other legal processes requesting the Customer's information), MacPaw will, to the extent allowed by the law and by the Agreement of the Third Party Request, direct such third party to Customer to pursue the Third Party Request. MacPaw retains the right to respond to Third Party Requests for Customer information where MacPaw determines, in its sole discretion, that it is required by law to comply with such a Third Party Request.
7.3. Customer is responsible for responding to Third Party Requests via its own access to information. Customer will seek to obtain information required to respond to Third Party Requests and will contact MacPaw only if it cannot comply with the Third Party Request despite diligent efforts.
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Support and Maintenance
8.1. MacPaw will provide technical support and maintenance to Customer to the extent possible and relying on the provisions of clause 2.2.of this Agreement. To contact the support team of MacPaw please use the “Contact support” form available in the CMM. You can also use this link to contact our support team: https://macpaw.com/support/contact?support_product=cleanmymac-x&question_type=58
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Privacy
9.1. Customer's use of CMM and the Services governed by CleanMyMac CMM X then-current version of Privacy Policy (the “Privacy Policy”) as published at the MacPaw website (available though the link https://macpaw.com/cleanmymac-x-privacy-policy ) and incorporated into this Agreement by reference. By accepting this Agreement, and using the CMM and the Services, Customer acknowledges, accepts and agrees with all provisions of the Privacy Policy.
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Confidentiality
10.1. Customer undertakes not to use or exploit in any way other than set forth in this Agreement, disclose or make available to any third party any and all the information obtained from MacPaw in connection with CMM and this Agreement, including, but not limited to, CMM source and object code, features, design, look and feel, functionality, feedback, related technical information identified as confidential or the results of any performance or functional evaluation or test of the CMM, other information that is designated as proprietary or confidential or which, by its nature, is manifestly apparent that it should be regarded as confidential or proprietary ("Confidential Information").
10.2. Customer agrees that it shall use the same security measures and degree of care that it utilizes to protect its own Confidential Information of a similar nature to protect the secrecy of and avoid disclosure or use of Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information.
10.3. The foregoing confidentiality obligation shall apply for so long as the information constitutes Confidential Information.
10.4. Nothing in this Agreement grants any intellectual property rights in respect of MacPaw's Confidential Information. Customer shall not make use of MacPaw's Confidential Information, directly or indirectly, in any manner that is competitive to, or would in any way circumvent, compromise, or undermine the rights of MacPaw in its Confidential Information as now or hereafter existing.
10.5. After the end of the Term of this Agreement or on receipt of a written (including by means of electronic communication) request to do so the Customer shall:
i. immediately cease to use the Confidential Information; and
ii. as soon as reasonably practical return to MacPaw or destroy (or in respect of information held electronically permanently delete to the extent technically feasible (without incurring excessive expense)), MacPaw's Confidential Information and, if requested to do so, issue to MacPaw a written certificate signed by one of its officers confirming such return or destruction.
10.6. Customer acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the confidentiality obligation set forth in this Agreement by such Party. Accordingly, each Party shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the confidentiality obligation set forth in this Agreement by the other Party.
10.7. Notwithstanding the provisions of clause 10.6. of this Agreement, in the event of a breach of confidentiality obligation prescribed in Section 10 of this Agreement by the Customer, the Customer shall be liable to MacPaw for an immediately due and payable penalty of EUR 20,000 (twenty thousand euros) per breach and EUR 5,000 (five thousand euros) for each day on which the breach continues, without prejudice to any other rights provided for by law or under this Agreement such as the rights set forth in clause 10.6. hereof.
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Intellectual Property Rights
11.1. Except as expressly set forth in this Agreement, Customer has no rights, implied or otherwise, to intellectual property of MacPaw. No title to or ownership of or other right in or to CMM or software provided by MacPaw to access the Services is transferred to Customer under this Agreement.
11.2. Customer will provide reasonable feedback to MacPaw concerning the features and functionality of CMM. If Customer provides feedback to MacPaw, all such feedback will be the sole and exclusive property of MacPaw. Customer hereby irrevocably transfers and assigns to MacPaw and agrees to irrevocably assign and transfer to MacPaw all of Customer's right, title, and interest in and to all feedback including all intellectual property rights therein (collectively, “Intellectual Property Rights”). Customer will not earn or acquire any rights or licenses in CMM or in any MacPaw's Intellectual Property Rights on account of this Agreement or Customer's performance under this Agreement, even if MacPaw incorporates any feedback into CMM.
11.3. MacPaw may use, modify, and incorporate into its products and services, license and sublicense, any feedback, comments, or suggestions on the CMM and Services that Customer may send to MacPaw or post in MacPaw's forums without any obligation to Customer.
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Warranty
12.1. Each party represents and warrants to the other that it has the requisite power and authority to accept this Agreement on behalf of the the party they represent, and perform it in accordance with the Agreement herein.
12.2. Customer represents and warrants that their use of the Services or CMM will not violate this Agreement.
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Disclaimers
13.1. CMM AND SERVICES ARE PROVIDED “AS-IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXPRESS WARRANTIES SET FORTH IN SECTION 12, 13 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. MACPAW DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY THE LAW. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EITHER PARTY HERETO, ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES IN THIS AGREEMENT.
13.2. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, MACPAW DOES NOT WARRANT THAT THE MACPAW'S SOFTWARE (INCLUDING CMM) OR THE SERVICES WILL MEET ALL REQUIREMENTS OF CUSTOMER, OR THAT THE OPERATION OF THE MACPAW'S SOFTWARE (INCLUDING CMM) OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS IN CMM AND THE SERVICES WILL BE CORRECTED. FURTHER, MACPAW IS NOT RESPONSIBLE FOR ANY DEFECT OR ERROR RESULTING FROM THE MODIFICATION, MISUSE OR DAMAGE OF ANY OF THE MACPAW SOFTWARE (INCLUDING CMM). MACPAW DOES NOT WARRANT AND SHALL HAVE NO LIABILITY WITH RESPECT TO THIRD PARTY SOFTWARE OR OTHER NON - MACPAW PRODUCTS.
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Indemnification by Customer
14.1. To the maximum extent permitted by applicable law, Customer agrees to indemnify and hold MacPaw, its subsidiaries, affiliates, officers, agents, employees, and partners harmless from and against any and all liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to claims made by any third party relating to Customer's use of CMM and Services in violation of this Agreement, Privacy Policy or applicable laws. In the event of such claim, MacPaw will provide notice of the claim, suit or action to Customer using the contact information it has for the account, provided that any failure to deliver such notice to Customer shall not eliminate or reduce Customer's indemnification obligation hereunder, except to the extent Customer can establish that it was prejudiced by such failure.
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Limitation of Liability
EXCEPT WITH RESPECT TO (A) CUSTOMER'S BREACH OF SECTION 3, 4, 6, 10 OR 11 AND (B) THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 14, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, PUNITIVE, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, , REVENUE, DATA OR DATA USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING IN CONTRACT OR IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR ITS TERMINATION OR NON-RENEWAL AND (II) EACH PARTY'S AGGREGATE AND CUMULATIVE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF $ 50 (FIFTY USD).
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Term and Termination
16.1. Unless MacPaw and Customer mutually agree otherwise in a separate written agreement, this Agreement shall be effective upon the Effective Date and shall remain in effect until the End Date.
16.2. Each Party has a right to terminate the force of the Agreement on convenience at any time by sending the written notice with an explanation to the e-mails of each Party.
16.3. Termination of this Agreement shall, as of the effective date of such termination, terminate Customer's access to CMM, Services and all other rights granted to Customer hereunder; provided, however, that any termination is without prejudice to the enforcement of any undischarged obligations existing at the time of termination.
16.4. After the termination of this Agreement the Customer undertakes to immediately delete CMM and all supportive materials either through the functionality provided in CMM, or through the functionality provided in other versions of CleanMyMac application (if any).
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General Agreement
17.1. Entire Agreement. The Agreement, together with the Privacy Policy, and any annexes thereto constitute the entire agreement between MacPaw and Customer with respect to its subject matter and supersedes all prior and contemporaneous proposals, statements, and agreements.
17.2. Amendments. No amendment or variation of this Agreement shall be effective unless in writing and uploaded by MacPaw to CMM.
17.3. No waiver. No waiver by a Party of any breach of any provisions of this Agreement shall be deemed to be a waiver of any subsequent or other breach and no failure to exercise or delay in exercising any right or remedy under this Agreement shall constitute a waiver of that right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall preclude or restrict the further exercise of that or any other right or remedy. Any waiver that is given must be given in writing (including by means of electronic communication).
17.4. Notices. Any notice sent under this Agreement shall be in writing addressed to the other Party by e-mail (as a scan or PDF) to email addresses set forth below: The Customer: e-mail address to which the Customer received the Activation Code. MacPaw: [email protected] The date upon which such notice is delivered shall be deemed to be the date of such notice, irrespective of the date appearing thereon.
17.5. Severability. If, for any reason, any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability and the remainder of this Agreement shall be enforced to the fullest extent possible.
17.6. Governing Law. The Agreement shall be governed by the law of the Republic of Cyprus without giving effect to conflicts of law principles. Any claim against MacPaw arising from the agreement shall be adjudicated on an individual basis, and shall not be consolidated in any proceeding with any claim or controversy of any other party. Any action relating to this Agreement must be brought in the courts having the jurisdiction located in the Republic of Cyprus, and you irrevocably consent to the jurisdiction of such courts.
17.7. Agreement, Successors, and Assigns. The Agreement and conditions of this Agreement shall inure to the benefit of and be enforceable by each of the parties and their permitted successors and assigns. Except as set forth in the immediately following sentences, the Customer shall neither assign this Agreement or any right or interest under this Agreement, nor delegate any obligation to be performed under this Agreement, without MacPaw's prior written consent. Agreement shall inure to the benefit of, and be binding upon, any legal successor to all or substantially all of the and assets of either party, where such succession occurs in connection with a merger, sale of assets, corporate restructuring or otherwise by operation of law; and MacPaw reserves the right to assign this Agreement to any MacPaw affiliate or successor. If Customer desires to request MacPaw to consent to an assignment of this Agreement, Customer shall send a formal request for consent by notice to MacPaw, and should send a message to MacPaw setting forth details concerning the requested assignment. Any attempted assignment or delegation in contravention of this provision shall be void and ineffective.
17.8. No Relationship. No agency, partnership, joint venture or employment is created between the parties as a result of this agreement. Except as specifically provided herein, neither party is authorized to create any obligation, express or implied, on behalf of the other party, nor to exercise any control over the other party's methods of operation.
17.9. Force Majeure. Except for payment obligations, neither MacPaw nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party's reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
17.10. Construction. The headings in the Agreement have been inserted for convenience and shall not modify, define or limit the express provisions of the Agreement. All pronouns shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons referred to may require. The parties hereto confirm that they understand the Agreement of, and voluntarily and knowingly accept the Agreement with the intent of being legally bound by this Agreement.
17.11. Language. Agreement is made only in the English language. If there is any conflict in meaning between the English language version of this Agreement and any version or translation of this Agreement in any other language, the English language version shall prevail.