Fictura Terms of Service

Article 1. Definitions

1.01. "Application" means a mobile, web or other software application owned or controlled by Customer that Customer registers with the Service.

1.02. "Customer Data" means all data, content and information submitted to, or collected by, the Service by or on behalf of Customer, including End User Data.

1.03. "Documentation" means the technical documentation made available at docs.fictura.co, as updated from time to time.

1.04. "End User" means a natural person who uses an Application.

1.05. "End User Data" means data relating to End Users that is transmitted to the Service through the SDK, the API, or an integration configured by Customer.

1.06. "SDK" means the Fictura software development kits, including the npm package @fictura/sdk, the iOS SDK, and the server-side agents, together with any updates.

1.07. "Third-Party Service" means any product or service not provided by Fictura that Customer elects to connect to the Service, including without limitation Stripe, RevenueCat, Slack, PostHog, Meta and the Apple App Store and Google Play.

1.08. "Web Checkout" means the feature described in Article 7.

Article 2. Eligibility and Account Registration

2.01. Eligibility. You must be at least eighteen (18) years of age and legally capable of entering into a binding contract. The Service is not directed to children.

2.02. Invitation. The Service is presently made available on an invitation-only basis. Fictura may grant, decline, condition or revoke access in its discretion.

2.03. Account Accuracy. You agree to provide accurate registration information and to keep it current.

2.04. Credentials. You are responsible for safeguarding your account credentials and all API keys, including SDK keys and secret keys, and for all activity occurring under them. You will notify Fictura promptly at support@fictura.co upon becoming aware of any unauthorized use. Publishable SDK keys are designed to be embedded in client applications; secret keys are not, and must never be exposed in client-side code, public repositories, or distributed builds.

Article 3. The Service; Beta Status

3.01. License to Use the Service. Subject to these Terms, Fictura grants Customer a limited, non-exclusive, non-transferable, revocable right to access and use the Service during the Term for Customer's internal business purposes.

3.02. License to the SDK. Fictura grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license to install and distribute the SDK solely as embedded within Customer's Applications, and solely in accordance with the Documentation.

3.03. Beta Service. Customer acknowledges that the Service is presently offered as a beta, pre-general-availability release. Beta features may be incomplete, may change materially or be discontinued without notice, and may contain defects. Article 15 (Disclaimers) and Article 16 (Limitation of Liability) apply with full force to the beta Service.

3.04. Modifications. Fictura may modify, add to or discontinue features of the Service. Fictura will use commercially reasonable efforts to give advance notice of a change that materially and adversely affects a feature Customer is actively using.

3.05. No Reliance on Roadmap. Statements regarding future functionality, including any item described on fictura.co as "in build" or "coming," are not commitments and do not form part of these Terms. Customer's purchase or use decisions must be based on functionality made generally available.

Article 4. Customer Data and Ownership

4.01. Ownership. As between the parties, Customer owns all right, title and interest in and to Customer Data. Fictura claims no ownership in it.

4.02. License to Fictura. Customer grants Fictura a worldwide, non-exclusive, royalty-free license to host, store, process, transmit, display and otherwise use Customer Data solely as necessary to provide, secure, maintain and support the Service, and as otherwise permitted by these Terms.

4.03. Aggregated Data. Fictura may create and use aggregated and de-identified data derived from use of the Service to operate, analyze and improve the Service, provided that such data does not identify Customer, any Application, or any End User, and is not disclosed in a manner that would permit re-identification.

4.04. Accuracy of Analytics. Customer acknowledges that attribution, analytics and revenue reporting involve inference, probabilistic matching subject to documented limits, and data received from Third-Party Services. Fictura endeavours to report honestly, including by suppressing a figure rather than presenting one it cannot support, but does not warrant that any metric is complete or free of error. Metrics produced by the Service are not a substitute for Customer's accounting records or store payout statements of record.

Article 5. End User Data and Data Protection

5.01. Roles. With respect to End User Data, Customer is the controller (or business) and Fictura is the processor (or service provider), as those terms are used in applicable data protection law. Fictura processes End User Data only on Customer's documented instructions, which these Terms and Customer's configuration of the Service constitute.

5.02. Customer Responsibilities. Customer is solely responsible for: (a) providing all legally required notices to End Users; (b) obtaining and maintaining all legally required consents, including for tracking and for the operating-system-level permissions applicable to Customer's platform; (c) honoring End User rights requests; and (d) ensuring that its collection and transmission of End User Data through the Service is lawful in every jurisdiction in which the Application is distributed.

5.03. Prohibited Data. Customer will not transmit to the Service any special category or sensitive personal data, protected health information subject to HIPAA, payment card numbers, government identification numbers, precise geolocation, biometric identifiers, or personal data of any individual known to be under the age of sixteen (16), except where a written agreement with Fictura expressly permits it.

5.04. Data Processing Addendum. Where required by applicable law, the parties will enter into Fictura's Data Processing Addendum, which is incorporated by reference and available on request at support@fictura.co. In the event of a conflict between the Data Processing Addendum and these Terms with respect to the processing of personal data, the Data Processing Addendum controls.

5.05. Security. Fictura maintains administrative, technical and physical safeguards designed to protect Customer Data appropriate to the nature of the data and the state of the art. Fictura will notify Customer without undue delay after becoming aware of a personal data breach affecting Customer Data.

Article 6. Third-Party Services and Connections

6.01. Customer-Directed. Connections to Third-Party Services are established at Customer's direction, using Customer's own credentials and accounts. Fictura acts on Customer's instruction in doing so.

6.02. No Responsibility. Fictura does not control and is not responsible for any Third-Party Service, its availability, its terms, its pricing, or its handling of data. Customer's use of a Third-Party Service is governed by Customer's agreement with that provider.

6.03. Platform Rules. Customer remains solely responsible for compliance with the rules of any application marketplace through which an Application is distributed, including the Apple App Store Review Guidelines and the Google Play Developer Program Policies, and for maintaining any entitlement, declaration or program enrollment those rules require.

Article 7. Web Checkout

7.01. What Fictura Does. Where Customer enables Web Checkout, Fictura, acting on Customer's instruction, generates a checkout session on Customer's own payment processor account and directs an eligible End User's operating system browser to it. Fictura writes identifying metadata to that session so the resulting subscription remains attributable.

7.02. What Fictura Does Not Do. Fictura is not a party to any transaction between Customer and an End User, is not a payment processor, payment facilitator, money transmitter or agent for the receipt of funds, and at no time holds, routes, escrows, or takes a fee from Customer's revenue. All funds settle directly to Customer's account with Customer's payment processor.

7.03. Merchant of Record. Customer is the merchant of record for every transaction processed through Web Checkout. Customer is solely responsible for pricing, taxes (including sales, use, VAT and GST and the collection and remittance thereof), invoicing, refunds, chargebacks, disputes, consumer disclosures, and compliance with all applicable consumer protection, distance selling and automatic renewal laws.

7.04. Entitlement. Access to paid functionality within an Application is granted on receipt of a billing webhook confirming payment, and not on an End User's arrival at a redirect or success page. Customer acknowledges this design and will not configure its Application to grant entitlement on redirect alone.

7.05. Marketplace Compliance is Customer's. Customer acknowledges that the permissibility of directing End Users to an external purchase mechanism is governed by the rules of the relevant application marketplace, that those rules vary by jurisdiction and change over time, and that Customer is solely responsible for determining whether its use of Web Checkout complies with them. Fictura's eligibility defaults, including its default restriction to iOS devices in the United States and its fail-closed behavior where a device's country cannot be determined, are engineering safeguards. They are not legal advice and are not a representation that any particular use is compliant. Fictura disclaims all liability arising from an application marketplace's rejection, removal, suspension or penalization of an Application.

Article 8. Acceptable Use

8.01. Customer will not, and will not permit any third party to: (a) reverse engineer, decompile or disassemble the Service except to the extent that restriction is unenforceable under applicable law; (b) resell, sublicense, or provide the Service as a service bureau to a third party except as expressly permitted; (c) circumvent or exceed any usage limit, rate limit or access control; (d) transmit malware or any code designed to disrupt the Service; (e) use the Service to send unsolicited communications or in violation of any anti-spam or telecommunications law; (f) use the Service to develop a competing product; (g) transmit data obtained unlawfully or in breach of a duty owed to any person; or (h) use the Service in violation of any applicable law.

8.02. Suspension. Fictura may suspend access, in whole or in part, immediately and without prior notice, where necessary to (a) prevent material harm to the Service or another customer, (b) comply with law or a request of a governmental authority, or (c) address a violation of Section 8.01. Fictura will restore access promptly once the cause is resolved.

Article 9. Fees

9.01. Beta Pricing. The Service is currently provided at no charge. No fee is payable for the Service during the beta period.

9.02. Future Pricing. Fictura may introduce fees for the Service. Fictura will give Customer no less than thirty (30) days' written notice before any fee first becomes payable on Customer's account, and no charge will be incurred without Customer's affirmative election to continue on a paid basis. If Customer does not elect to continue, Customer's account may be downgraded or terminated at the end of the notice period, and Customer may export its data as provided in Section 14.04.

9.03. Taxes. Any future fees are exclusive of taxes, which Customer is responsible for other than taxes on Fictura's net income.

Article 10. Confidentiality

10.01. Each party may disclose information that is designated confidential or that a reasonable person would understand to be confidential ("Confidential Information"). The receiving party will use it only to perform under these Terms, will protect it with no less than reasonable care, and will not disclose it except to personnel and advisors bound by comparable obligations.

10.02. Non-public aspects of the Service, including unreleased features, pricing discussions, performance data and the Documentation for features not yet public, are Fictura's Confidential Information. Customer Data is Customer's Confidential Information.

10.03. Confidential Information does not include information that is or becomes public through no fault of the receiving party, was known to it without restriction, or is independently developed. A party may disclose Confidential Information where compelled by law, on prior notice to the other party where lawful.

Article 11. Intellectual Property

11.01. Fictura IP. Fictura and its licensors retain all right, title and interest in and to the Service, the SDK, the Documentation, and all software, technology, designs, trademarks and know-how embodied in them. No rights are granted other than those expressly stated.

11.02. Trademarks. "Fictura" and the Fictura marks and logos are trademarks of Fictura, Inc. Customer may not use them except with prior written permission, save that Customer may factually state that its Application uses Fictura.

11.03. Feedback. If Customer provides suggestions, ideas or feedback regarding the Service, Fictura may use them without restriction, obligation or compensation. Customer grants Fictura a perpetual, irrevocable, worldwide, royalty-free license to do so.

11.04. Publicity. Fictura will not use Customer's name, logo, or the name of any Application in marketing materials without Customer's prior written consent.

Article 12. Term and Termination

12.01. Term. These Terms commence on the earlier of Customer's account creation or first use of the Service and continue until terminated (the "Term").

12.02. Termination by Customer. Customer may terminate at any time by closing its account and ceasing use of the Service.

12.03. Termination by Fictura. Fictura may terminate these Terms (a) for Customer's material breach not cured within thirty (30) days of written notice, (b) immediately for a breach of Article 8, and (c) for convenience during the beta period on thirty (30) days' written notice.

12.04. Effect; Data Export. On termination, Customer's right to use the Service ceases and Fictura will make Customer Data available for export for thirty (30) days, after which Fictura may delete it in the ordinary course, subject to backup retention cycles and any legal retention obligation.

12.05. Survival. Articles 4, 8, 10, 11, 15, 16, 17 and 18 and any accrued payment obligation survive termination.

Article 13. Representations

13.01. Each party represents that it has the authority to enter into these Terms. Customer further represents that it has all rights necessary to submit Customer Data to the Service and to grant the licenses in Section 4.02.

Article 14. Support

14.01. Support during the beta period is provided by email at support@fictura.co on a commercially reasonable efforts basis. No service level agreement, uptime commitment or response time commitment applies unless separately agreed in writing.

Article 15. Disclaimers

15.01. THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FICTURA DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

15.02. FICTURA DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, THAT ANY DATA WILL BE ACCURATE OR COMPLETE, THAT ANY ATTRIBUTION, ANALYTICS OR REVENUE FIGURE WILL BE ACCURATE, OR THAT THE SERVICE WILL PRODUCE ANY PARTICULAR BUSINESS RESULT.

15.03. FICTURA MAKES NO REPRESENTATION REGARDING THE COMPLIANCE OF ANY APPLICATION WITH THE RULES OF ANY APPLICATION MARKETPLACE, AND PROVIDES NO LEGAL, TAX OR ACCOUNTING ADVICE.

15.04. Some jurisdictions do not allow the exclusion of certain warranties. To that extent, the exclusions in this Article apply only to the maximum extent permitted.

Article 16. Limitation of Liability

16.01. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, GOODWILL, BUSINESS OPPORTUNITY, OR DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY.

16.02. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FICTURA'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICE WILL NOT EXCEED THE GREATER OF (A) THE TOTAL AMOUNTS PAID BY CUSTOMER TO FICTURA FOR THE SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (B) ONE HUNDRED UNITED STATES DOLLARS (USD 100).

16.03. The limitations in this Article do not apply to a party's breach of Article 10 (Confidentiality), Customer's breach of Article 8 (Acceptable Use), Customer's indemnification obligations, or liability that cannot be limited under applicable law.

16.04. Customer acknowledges that the Service is provided without charge during the beta period, that the limitations in this Article reflect that allocation of risk, and that Fictura would not provide the Service on these terms without them.

Article 17. Indemnification

17.01. By Customer. Customer will defend, indemnify and hold harmless Fictura and its officers, directors, employees and agents from and against any third-party claim, and all resulting damages, liabilities, costs and reasonable attorneys' fees, arising out of or relating to (a) Customer Data or any Application, (b) Customer's breach of Article 5, Article 7 or Article 8, (c) any claim by an End User relating to a transaction for which Customer is the merchant of record, or (d) any action taken by an application marketplace with respect to an Application.

17.02. By Fictura. Fictura will defend Customer against any third-party claim alleging that the Service, as provided by Fictura and used in accordance with the Documentation, infringes a United States patent, copyright or trademark, and will pay damages finally awarded, provided that Customer gives prompt notice, sole control of the defense, and reasonable cooperation. Fictura has no obligation for a claim arising from Customer Data, from a modification of the Service not made by Fictura, from combination with anything not supplied by Fictura, or from use after notice to discontinue.

17.03. Fictura's obligations under Section 17.02 are subject to the limitations in Article 16.

Article 18. Dispute Resolution and Governing Law

18.01. Governing Law. These Terms are governed by the laws of the State of Delaware, without regard to its conflict of laws principles, and by applicable United States federal law. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

18.02. Informal Resolution. Before initiating any proceeding, the parties will attempt in good faith to resolve the dispute for thirty (30) days after written notice describing it, sent to support@fictura.co.

18.03. Binding Arbitration. Except as provided in Sections 18.05 and 18.06, any dispute arising out of or relating to these Terms or the Service will be resolved by final and binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, before one arbitrator, seated in Miami-Dade County, Florida, conducted in English. Judgment on the award may be entered in any court of competent jurisdiction.

18.04. Class Action Waiver. ALL CLAIMS MUST BE BROUGHT IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PARTY'S CLAIMS. If this Section is held unenforceable as to a particular claim, that claim, and only that claim, will proceed in the courts identified in Section 18.06.

18.05. Carve-Outs. Either party may (a) bring an individual action in small claims court, and (b) seek injunctive or other equitable relief in a court of competent jurisdiction to protect its intellectual property or Confidential Information, without first complying with Sections 18.02 and 18.03.

18.06. Forum. For any dispute not subject to arbitration, the parties consent to the exclusive jurisdiction and venue of the state and federal courts located in Miami-Dade County, Florida, and waive any objection to that forum.

18.07. Opt-Out. Customer may opt out of Sections 18.03 and 18.04 by sending written notice to support@fictura.co with the subject line "Arbitration Opt-Out," including its account email, within thirty (30) days of first accepting these Terms. Opting out does not affect any other provision.

Article 19. Export, Sanctions and Government Use

19.01. Customer represents that it is not located in, and is not a national or resident of, any country subject to a United States embargo, and is not listed on any United States government list of prohibited or restricted parties. Customer will comply with all applicable export control and sanctions laws.

19.02. The Service is "commercial computer software" as defined in FAR 12.212 and DFARS 227.7202. Any use by or on behalf of a United States government entity is subject to these Terms.

Article 20. General

20.01. Entire Agreement. These Terms, together with the Privacy Policy and any Data Processing Addendum, constitute the entire agreement between the parties regarding the Service and supersede all prior or contemporaneous understandings.

20.02. Amendment. Fictura may amend these Terms by posting the amended Terms with a revised "Last updated" date. Fictura will give at least thirty (30) days' notice by email or in-product notice of any amendment that materially and adversely affects Customer. Continued use after the effective date constitutes acceptance.

20.03. Assignment. Customer may not assign these Terms without Fictura's prior written consent, except to a successor in connection with a merger, acquisition or sale of substantially all assets, on notice. Fictura may assign freely.

20.04. Notices. Notices to Customer may be sent to the email address on the account or given in-product. Notices to Fictura must be sent to support@fictura.co and, where a physical address is required, to Fictura, Inc. at c/o Addicting Elements LLC, 260 Crandon Blvd, Ste. 32 #1040, Key Biscayne, Florida 33149.

20.05. No Waiver. A failure to enforce a provision is not a waiver of it.

20.06. Severability. If any provision is held unenforceable, it will be modified to the minimum extent necessary and the remainder will remain in full force.

20.07. Independent Contractors. The parties are independent contractors. Nothing creates a partnership, joint venture, agency or employment relationship.

20.08. Force Majeure. Neither party is liable for a failure to perform, other than a payment obligation, caused by circumstances beyond its reasonable control.

20.09. Third-Party Beneficiaries. There are no third-party beneficiaries to these Terms.

20.10. Electronic Communications. Customer consents to receive communications from Fictura electronically, and agrees that electronic acceptance, records and signatures satisfy any legal requirement that a communication be in writing.

20.11. Headings. Headings are for convenience only and do not affect interpretation.

Article 21. Contact

Fictura, Inc.

support@fictura.co