adWave

IMPORTANT: PLEASE READ THESE TERMS CAREFULLY. This Terms of Use and End User License Agreement, along with any Terms of Offer appearing on this website and the websites identified below, along with any posted rules or instructions, constitute the entire agreement (“Agreement”) between you and us regarding your use of the website and related information, data, products and services (collectively, the “Services” or “Service”). YOUR USE OF THIS WEBSITE AND/OR THE WEBSITES IDENTIFIED BELOW CONSTITUTES ACCEPTANCE OF THESE TERMS OF USE AND END USER LICENSE AGREEMENT, INCLUDING THE PRIVACY POLICY (COLLECTIVELY, "TOU/EULA").

The Service is owned by Omega Partners (which may be referred to herein as “Omega,” “we,” or “us”).

We may change any of the terms contained in the TOU/EULA at any time by posting the revised TOU/EULA on this website. If we revise the TOU/EULA, such revision shall be effective thirty (30) days after posting the new TOU/EULA on this site. You are responsible for periodically reviewing changes to this TOU/EULA, which you can do by clicking on the “Terms of Use” or similar link. You agree that your continued use of the Service following any changes to this TOU/EULA and after the changes take effect will constitute your acceptance of such changes. If you do not agree to such changes to the TOU/EULA, your only remedy is to discontinue use of the Service and to cancel your account.

This Agreement shall remain in full force and effect while you use the Service. Subject to the provisions in this paragraph, you may terminate your use of the Service at any time, with or without notice, by following the instructions on the website. You acknowledge and agree that your termination may result in the forfeiture and destruction of all information associated with your user account and may result in forfeiture of any unused Credits in your account. You agree that upon your termination of your use of the Service, we may elect to keep your account open until your account has zero Credits. If your Credit account is positive at the time you send AdWave a termination notice, AdWave will continue to show your Promoted Application in the AdWave bar appearing on third party applications until your Credit account equals zero. If your Credit account is negative at the time you send AdWave a termination notice, you must include the AdWave bar in your Promoted Application until your Credit account equals zero. AdWave may terminate your access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your user account. If your use of the Service is terminated or you cease to offer the Promoted Application, then, subject to the restrictions set forth herein, including this paragraph, you shall immediately and permanently cease all use of the Service and any materials provided by AdWave in connection with the Service.

DESCRIPTION OF SERVICES

AdWave: A cross-promotion and advertising network for social games and applications. Developers can increase exposure of their applications to 1,000’s of potential users through free cross-promotion or paid advertising.

AdWave Website: Application developers can sign up on the website and maintain an account for free cross-promotion or paid advertising services for their social games and applications.

SERVICES/FEES/TERMINATION/REFUNDS/RETURNS

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. We reserve the right to modify, refuse, suspend or discontinue the Service with or without notice at any time, for any reason, and without any liability. Terms related to payment of fees (if any) are specified in the Terms of Offer and may be updated by us from time to time. PLEASE SEE OTHER DISCLAIMERS BELOW.

The term of this Agreement will be for such period of time until the Service is canceled. You may terminate this Agreement and your Service at any time without further obligation. If you are enrolled in more than one program, each must be canceled separately. To cancel, you must submit a support ticket at http://www.adwave.com/Support/New or call Customer Support Mon. - Fri. 8:30 AM - 10:00 PM ET. If calling from within the US dial toll-free 1-888-609-8258. If calling from outside the US dial +1 561-948-6419.

When you complete the registration process, you create an account. Your account allows you to participate in certain activities. To create an account, you must select a login name and password. You may not use a login name that is used by someone else, and your login name cannot be vulgar, or otherwise offensive, or be used in any way that violates the TOU/EULA. You may not provide false information during the registration process. You must provide truthful and accurate information in creating your account. You are solely responsible for all activity on your account and for the security of your login name, password, computer system and/or related system. You may not reveal your password to other users. You agree to indemnify and hold us harmless for any improper or illegal use of your account. This includes illegal or improper use by someone to whom you have given permission to use your account. Your account is at risk if you let someone use it inappropriately and your account in any of our Services is subject to termination if you or anyone using your account violates the TOU/EULA.

We disclaim any responsibility related to files uploaded by you or other users. By uploading files, you are assuming full responsibility for the consequences of doing so.

You are solely responsible for any and all conduct in entering, altering, modifying, sending or retrieving data, text information, screen names, graphics, photos, profiles, audiovisual clips, links or other content submitted, posted, displayed, transmitted or shared using your User Identification.

We do not claim ownership of any content you submit, post, transmit or share using our Services.

You consent that we may provide you with required notices, benefits and account information through electronic disclosure via email and postings on our website, or at the email address provided at the time of sign up (or as amended at our website by you from time to time).

You understand and agree that the cancellation of your account is your sole right and remedy with respect to any dispute with us. This includes, but is not limited to, any dispute related to, or arising out of: (1) any term of this TOU/EULA or our enforcement or application of this TOU/EULA; (2) the content available through this site or any change in such content; (3) your ability to access and/or use this site; or (4) the amount or type of any fees, surcharges, applicable taxes, billing methods, or any change to the fees, applicable taxes, surcharges or billing methods.

Refunds: Provided that you have complied with this Agreement in all respects, you can receive a full refund for Purchased Credits (as that term is defined below) which are not used within 30 days of purchase. Refunds are subject to a 10% processing fee.

Refund procedure: To request a refund, you must submit a support ticket at http://www.adwave.com/Support/New or call Customer Support Mon. - Fri. 8:30 AM - 10:00 PM ET. If calling from within the US dial toll-free 1-888-609-8258. If calling from outside the US dial +1 561-948-6419.

The Service and platform on the AdWave website (currently available at www.adwave.com) facilitates advertising and promotion of users’ applications, websites and other properties (“Promoted Application”). The Service is used by integrating an AdWave provided cross-promotional bar or other AdWave provided advertising into your Promoted Application.

The AdWave Service is offered subject to acceptance without modification of all of the terms and conditions contained in the Agreement. In addition, some aspects of the AdWave Service may be subject to additional terms and conditions promulgated by AdWave from time to time; your use of the AdWave Service is subject to those additional terms and conditions, which are automatically incorporated into these Terms of Service by this reference.

The AdWave bar shall only be displayed in connection with the Promoted Application, each of which is subject to review and approval by AdWave in its sole discretion at any time. The placement of the AdWave bar in the Promoted Application shall follow the guidelines set by AdWave. You must notify AdWave of any significant or otherwise material content changes to existing Promoted Applications. AdWave reserves the right to accept or reject new, modified or existing Promoted Applications and is under no obligation to accept any modified Promoted Applications, even though the original Promoted Application has previously been accepted. In the event that you receive an approval for new Promoted Applications, each and every Promoted Application is subject to the terms of this Agreement. You must display the unmodified AdWave bar to users of your Promoted Application. You may not alter, obscure or minimize the AdWave bar in any way.

You may not segment the users of the Promoted Application to whom the AdWave bar is shown, except as required for users under the age of 13. If you do not display the AdWave bar to all of the users of your Promoted Application, you must fully randomize the users to whom the AdWave bar will be displayed. If a user enters your Promoted Application through an AdWave bar, you must display an AdWave bar to that user whenever that user uses the Promoted Application.

You acknowledge and agree that the AdWave Service is supported by advertisements and that, as a condition of your participation in the AdWave Service, third party advertisements may appear in the AdWave bar which is intergrated into into your Promoted Application. These advertisements will be placed by AdWave in its sole discretion. The placement of these advertisements will vary according to the Clicks and Credits (as defined below) that flow through your Promoted Application. You will ensure that the AdWave bar is displayed to actual, live end users of your Promoted Application and not from any automated process or tool. You will ensure that any clicks on AdWave bar or other use of the Adwave Service will originate from, actual, live end users of your Promoted Application and not from any automated process or tool.

A “Click” is defined as an event in which a live, actual end user who is engaged with an application clicks on a hyperlink presented in the AdWave bar to leave that application for the purpose of engaging with another application or for other promotional purposes. A “Credit” is defined as the value of a Click within the Service, that value depending on the demographics and the characteristic of the end user performing the Click and the nature of the applicable hyperlink, as determined in AdWave’s sole discretion. There is no monetary value for Credits earned or exchanged within the Service. Credits can be purchased (“Purchased Credits”) within your account and spent on Clicks to drive more traffic.

You will spend an amount of Credits when an end user who is engaged with a third party application clicks on an ad for your Promoted Application to leave that third party application for the purpose of engaging with your Promoted Application. AdWave earns a commission each time a Credit is spent. The commission rate varies by the type of account you have registered and the quality of your Promoted Application. By way of example, and not binding to AdWave, if you have 1,000 Credits with an account that has 10% commission and spend 500 Credits for Clicks in China, each valued at 0.2 Credits, then you receive 2,500 Clicks. AdWave will charge your account the 500 Credits plus 10% commission totaling 550 Credits.

You will receive an amount of Credits when an end user who is engaged with your Promoted Application clicks on an ad on the AdWave bar for the purpose of engaging with another application. Credits can also be purchased in set amounts (“Purchased Credits”). The exchange rate for Credits varies depending on geographic location. By way of example, and not binding to AdWave, if you generate 2,500 Clicks from users from in China valued at 0.2 Credits per Click, you will receive 500 Credits. We may, at our discretion, also use other calculation methods that yield the same effective result across the whole Service user base.

You agree that Credits other than Purchased Credits have no actual monetary value and may not be exchanged for money. You will not earn Credits for (a) invalid Clicks in any way or any person, bot, automated program or similar device, as reasonably determined by AdWave, including without limitation any Clicks or impressions (i) originating from your IP addresses or computers under your control, (ii) solicited by payment of money, false representation, or request for end users to click on the AdWave bar. (b) Clicks co-mingled with a significant number of invalid Clicks described in (a) above, or as a result of any breach of this Agreement by you. (c) any Clicks on the AdWave bar that are not Clicks directing end users into any Promoted Application, or Clicks to services provided by AdWave.

AdWave reserves the right to withhold Credits or charge back your Credit account the amounts due to any of the foregoing or any breach of this Agreement by you. If you have failed to fulfill your obligation to serve back Clicks to AdWave, AdWave reserves the right to offset any outstanding Credits from any Credits earned by you. If you dispute any calculation of Credits made in connection with the Service, such dispute will be resolved as follows: (a) you must notify us in writing within thirty (30) days after an event giving rise to such dispute. If you do not notify us within that time period, you waive any rights related to the disputed Credits. (b) Credits shall be calculated solely based on records maintained by us. (c) AdWave will not use or accept any other measurements or statistics of any kind. Any other measurements or statistics will not have any effect under this Agreement.

You agree not to disclose any AdWave’s confidential information without first obtaining the prior written consent. For the purposes of this Agreement “Confidential Information” includes without limitation: (a) All AdWave software, technology, programming, technical specifications, materials, guidelines and documentation relating to the Service; (b) Statistics such as click and impression counts or other statistics relating to the Promoted Application as provided to you by AdWave; (c) AdWave Data; and (d) Any part of the Service requiring registration and any other information designated in writing as “Confidential”. Confidential Information shall not include information that is publicly known through no breach by you, or information that you obtained independently without access to Confidential Information, or rightfully received by you from a third party, or required to be disclosed by law or by a governmental authority.

AdWave agrees not to disclose any of the following confidential information about you and your Promoted Application without first obtaining your prior written consent. For the purposes of this Agreement “Publisher’s Confidential Information” includes without limitation: (a) All software, technology, programming, technical specifications, materials, guidelines and documentation relating to Promoted Application that you disclose to AdWave; (b) Non-aggregated statistics such as click and impression counts or other statistics relating specifically to the Promoted Application as provided to you by AdWave; and (c) Publisher Confidential Information shall not include information that is publicly known through no breach by AdWave, or information that AdWave obtained independently without using to Publisher Confidential Information, or rightfully received by AdWave from a third party, or required to be disclosed by law or by a governmental authority.

INTELLECTUAL PROPERTY RIGHTS/LICENSE

Copyright Notice. © Omega Partners Ltd., 2011. All rights reserved.

The Service is controlled and operated by us. The Service, and all materials accessible through the Services, including code, images, text, illustrations, logos, audio and video files (collectively "Intellectual Property"), are protected by copyrights, trademarks, service marks, or other proprietary rights owned or licensed by us. The compilation (meaning the collection, arrangement, and assembly) of all materials on the Services is our exclusive property and is protected by U.S. and foreign laws and international copyright treaties. Material from the Services may not be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way. Use or modification of our Intellectual Property in any form, including but not limited to use on any other website or networked computer environment, without our express written authorization is a violation of our copyrights and other proprietary rights and is strictly prohibited. Any copies of documents contained on this website or portions thereof that you make must include the above copyright notice.

Documents published on this website may contain other proprietary notices or describe products, services, processes or technologies owned by us or by third parties. Except as expressly set forth herein, nothing contained herein shall be construed as us granting to the user a license under any copyright, trademark, patent or other intellectual property right of ours or any third party. Except as expressly granted to you under this TOU, all rights are reserved by us;

You may not link to this website, without prior consent from us, which consent may be withdrawn by us at any time, with or without notice, in our sole discretion.

Notification and Procedure for Making Claims of Copyright Infringement. You may notify us if your work has been copied in a way that you believe constitutes copyright infringement. In compliance with the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2), we have designated a Copyright Agent to receive any such notification. Our Copyright Agent may be contacted at:

Designated Agent for DMCA Notices
Omega Partners
c/o Kris R. Keeney, Esq.
4510 Cox Road, Suite 109
Glen Allen, Virginia 23060

If you wish to notify our Copyright Agent of a claim of copyright infringement, please provide written notice. Your notice must contain the following information:

1. A physical or electronic signature of the person authorized to act on behalf the copyright owner;
2. Identification or description of the copyrighted work you claim has been infringed;
3. Identification or description of the work you believe is infringing on your copyrighted work and enough information to assist us in locating the allegedly infringing work;
4. Your address, telephone number, and email address;
5. A statement that you have a good faith belief that the use by the person you believe has infringed on your copyright is not authorized by the copyright owner, its agent, or the law; and
6. Your statement, made under penalty of perjury, that the information contained in your notification is accurate, and that you are the copyright owner or are authorized to act on the owner's behalf.

Trademarks. “Adwave” and other marks, logos, and service names are our trademarks and/or trade dress or the trademarks and/or trade dress of our affiliates. None of our trademarks or our affiliates' trademarks may be used in connection with any product or service that is not ours or our affiliates', or in any manner that is likely to cause confusion among users, or in any manner that disparages or discredits us or our affiliates. All other trademarks viewable from a search performed using the Service are the trademarks and/or registered trademarks of their respective owners.

By installing and/or using our software (“software”), you agree to the following:

i. License. We grant you a non-exclusive license to install and use our software solely for personal use and only for the purpose of accessing the Service. We and our software licensors/suppliers reserve the right to add additional features or functions to the software at any time, without requesting your approval. We may require the update of software on your computer when new versions of the software are released or new enhancements are available. Updates may occur automatically when you use the Service. Changes to this End User License Agreement may be made by us and will be posted on the website. Your continued use of the software will constitute consent to the revised terms. We are under no obligation to support software for which a license has not been purchased and paid for in full. We may at any time suspend or terminate this license and disable the software.

ii. Restrictions. You may not reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code of the software for any reason. You may not modify the software in any way. You may not rent, sell, lease, sublicense, distribute, assign, copy (other than a single copy for your own backup purposes), create derivative works or in any way transfer the software or use the software for the benefit of any third party through any outsourcing or time-sharing arrangement or through the operation of any service bureau. You understand that the software is licensed not sold, and that the software and all rights not expressly granted herein are reserved to us and our licensors/suppliers. We reserve the right to remove or replace any uploaded files, and assume no liability for lost or misplaced file URLs. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information of us and our affiliates without our express written consent. You may not use any Meta tags or any other "hidden text" utilizing our name or trademarks or those of our affiliates without our express written consent or that of our affiliates. The materials provided herein are for personal, non-commercial use only. Documents published on this website may contain other proprietary notices or describe products, services, processes or technologies owned by us or by third parties. Except as expressly set forth herein, nothing contained herein shall be construed as us granting to the user a license under any copyright, trademark, patent or other intellectual property right of ours or any third party. Except as expressly granted to you under this TOU/EULA, all rights are reserved by us. You may not link to this website without prior consent from us, which consent may be withdrawn by us at any time, with or without notice, in our sole discretion.

iii. Voluntary Use/Our Collection and use of non-Personally Identifiable Information. Your use of the Services is voluntary. You may stop using and uninstall any of our software at any time. By downloading the our software and/or using the Service, you acknowledge and agree that certain of our software and/or plug-ins may collect and use non-personally identifiable information relating to your use of the Service (such as IP address, browser type, referring URL). For example, certain of our software collects and organizes information about users’ computer usage and the websites visited by users into the database used to provide the Services. Use of such information is of course subject to the Omega Privacy Policy.

iv. Export Controls. The software or goods sold herein may be subject to export controls or restrictions by the United States or other countries or territories. You agree to (i) comply with the requirements of the U.S. Department of Commerce (DOC) Export Administration Regulations (EAR) (see http://www.bis.doc.gov) and all applicable international, national, state, regional and local laws, and regulations, including without limitation any applicable import and use restrictions, (ii) not export, or re-export, directly or indirectly, the Software to any country outlined in the EAR, nor to any person or entity on the DOC Denied Persons, Entities and Unverified Lists, the U.S. Department of State's Debarred List, or on the U.S. Department of Treasury's lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers, or Specially Designated Terrorists, and (iii) not license, sell, provide or distribute the Software for use in connection with chemical, biological, or nuclear weapons or missiles capable of delivering such weapons.

You hereby acknowledge that AdWave owns or licenses all of the content on the Website and available through the Service (collectively "Content"), and the trademarks, service marks, and logos contained therein ("Marks") are owned by or licensed to AdWave, subject to applicable intellectual property laws. AdWave reserves all rights not expressly granted in and to the Service and the Content. AdWave hereby acknowledges that you own or license the intellectual property rights in your Promoted Application and the trademarks, service marks and logos contained therein. To participate in the Service, you agree to provide and do hereby grant AdWave a limited, royalty-free, non-exclusive, perpetual license to (i) use your name, logo, and the title(s), logo(s) and any artwork submitted by you of your Promoted Applications or websites on the Service including the AdWave bar and in any other way in connection with the Service. Further you agree to provide and do hereby grant AdWave a limited, royalty-free, non-exclusive license during the term of this Agreement to display the Service’s content such as the AdWave bar on your application. You also hereby grant each user of the Service a non-exclusive license to link to and to direct end users to your Promoted Application through the Service. Subject to these Terms of Service, AdWave grants you a limited, non-exclusive, non-sub-licensable, non-transferable right during the term to display and use the Service, including the AdWave bar, on your Promoted Application, and to use any materials such as instructions, artwork and templates provided by AdWave in connection with the Service.

User Submissions: You will manage and be responsible for the content you submit for use on the Service including advertisements to be shown on the AdWave bar (“Submission”). You guarantee that your Submission will not be unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortuous, obscene, offensive, or profane. You represent and warrant that you own or possess sufficient rights to the Submission and that disclosure, use or any other exploitation of the Submissions by AdWave will not infringe or violate the rights of any third party. You retain ownership in and the ability to license your Submission and any content in the Submission. You hereby grant AdWave an irrevocable, perpetual, worldwide, non-exclusive, royalty-free, fully paid, sub-licensable and transferable license to use, modify, reformat, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit your Submission in connection with the Service and AdWave 's (and its successors and assigns) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You are solely responsible for your (i) own Submission and the consequences of posting or publishing it and (ii) the actual implementation of the AdWave bar on your website and/or Promoted Application. AdWave will under no circumstances be liable in any way for any Submission, including, but not limited to, any errors or omissions in any Submission, or any loss or damage of any kind incurred in connection with use of or exposure to any Submission made available via the Service. You agree to pay all royalties, fees, and other costs that might arise because of your Submission. If you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to our copyright dispute policy below.

ACCEPTABLE USE POLICY

ILLEGAL, UNAUTHORIZED, OR FRAUDULENT CONTENT OR ACTIVITIES

This Section defines the Acceptable Use Policy ("Policy") relating to the Service. You are responsible for continual compliance with this Policy. You agree that you will use the Service in compliance with all applicable local, state, national, and international laws, rules and regulations. We take no responsibility for third party content, nor do we have any obligation to monitor such third party content. Nonetheless, we reserve the right to monitor content at any time for any reason. Further, we reserve the right to remove objectionable or personally identifiable information. We will not be responsible or liable for the exercise or non-exercise of your rights under this TOU/EULA.

For example, you may not use the Services to create, transmit, distribute, or store material that:

• Violates a trademark, copyright, trade secret or other intellectual property rights of others
• Violates the privacy, publicity or other personal rights of others
• Impairs the privacy of communications
• Contains obscene, offensive or inappropriate content
• Constitutes pornography
• May be threatening, abusive or hateful
• Violates export control laws or regulations
• Encourages conduct that would constitute a criminal offense or give rise to civil liability
• Causes technical disturbances to the Service, including, but not limited to, adware, spyware, introduction of viruses, worms or other destructive elements
• Assists or permits any persons in engaging in any of the activities described above
• Involves deceptive on-line marketing

If you become aware of any such activities, you are obligated to immediately notify us. We reserve the right to suspend or terminate access to the Services upon notice of a violation of this Policy. Indirect or attempted violations of this Policy, and actual or attempted violations by a third party on behalf of you, shall be considered violations of this Policy by you.

We have the right, but not the obligation, to monitor any activity or content associated with the Service. We may investigate any reported violation of its policies and take any action we deem appropriate, including terminating your access to the Service without notice. Any of the following, without limitation, would be a violation of the TOU/EULA and our policies and guidelines, and upon our determination, in our sole discretion, that you have engaged in any of the following, we shall terminate your access to the Service without notice, and to the extent applicable, remove, or disable access to, any material that is in violation of the following or claimed to be infringing or to be the subject of infringing activity. Accordingly, you expressly represent, warrant and covenant that you shall not upload, post or transmit to or distribute or otherwise publish through the Service any materials which (i) restrict or inhibit any other user from using and enjoying the Service, (ii) are unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent, (iii) constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate law, (iv) violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right, (v) contain a virus or other harmful component, or (vi) constitute or contain false or misleading indications of origin or statements of fact.

We may report any activity we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. To cooperate with governmental requests, to protect our systems and users, to ensure the integrity and operation of our business and systems, or in response to subpoenas, court orders, or legal requirements, we may access and disclose any information we consider necessary or appropriate, including your contact details, IP addressing and traffic information, posted content, and web usage paths. By using the Service you expressly consent to the foregoing use and disclosure.

You will not do anything, or attempt to do anything, to modify, circumvent, disable, violate, or interfere with the security or integrity of the Website or Service, the proper operation of the Website or Service, or any activity being conducted on the Website or Service. You will not “crawl,” “spider,” index or in any non-transitory manner store or cache information obtained from any part of the Service. You shall not (directly or indirectly) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction, or modify any part of the Service. You are solely responsible for your Promoted Application including its maintenance, operation and any content within the Promoted Application. You agree that your content will not contain restricted or password-only access pages, hidden pages, or images. You will not use the Service to post false or libelous content or for distributing spam or viruses.

When you connect to third party websites and applications through the Service, you agree that AdWave does not control the content on these sites (and is merely a passive conduit with respect to), does not endorse these sites, and is not responsible or liable for their availability, any content, advertising, products, or other materials on or available from such sites or resources. You will not use the Service and Website in any way that violates any laws, third party rights (including all intellectual and other proprietary rights) including but not limited to any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity, or conflict with this Agreement, any agreement you may have with a third party, or any of AdWave’s policies in any way. If the Promoted Application is subject to a third party’s policies such as Facebook Inc.’s terms of use and privacy policy, you will comply with such policies.

You may hyperlink to the Website in a non-misleading, non-derogatory, and non-offensive manner as determined by us. You will be responsible for withholding, filing, and reporting all taxes (except AdWave’s income taxes), duties, and other governmental assessments associated with your applications and your use of the Service and the Website. You agree that AdWave does not guarantee 24/7 availability of the Service. AdWave will endeavor to minimize any downtime of the Service. You will not knowingly display the AdWave bar or supply to AdWave any data on end users under the age of 13. If you become aware that a user is under 13 years of age, you will notify AdWave so that we may delete any data on such user. You will follow any further guidelines as they may be posted on the Website that govern how the Service may be used.

You also acknowledge and agree that AdWave Data may not be copied or reproduced, altered, modified, changed, broadcast, distributed, transmitted, transferred, disseminated, sold or offered for sale in any manner, at any time anywhere in the world except as expressly authorized in writing by AdWave. Nothing herein shall be construed as a grant or assignment to you or any third party of any right, title or interest in any AdWave Data owned by AdWave, including, without limitation, any of its trademarks or service marks.

INDEMNIFICATION

You agree to indemnify, defend and hold us harmless as well as any parent company, subsidiaries, affiliates ( and each of our or their officers, directors, managers, employees, agents, representatives, information providers and licensors), against liability related to any claims, demands, including but not limited to reasonable attorney's fees, arising from or in any way related to any alleged violation of this TOU/EULA by you, use of the Services by any other person through you or using your computer or your account, claims by third parties related to your use of the Services or in connection with your transmission of any content on or through the Service. This Section shall survive termination of this TOU/EULA.

NO WARRANTY

YOU ARE USING THE SERVICES AT YOUR OWN SOLE RISK AND WE ARE UNDER NO OBLIGATION TO PROVIDE YOU WITH ANY SUPPORT, ERROR CORRECTIONS, UPDATES, UPGRADES AND/OR ENHANCEMENTS OF THE SERVICE.

YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. THE USER OF THIS WEBSITE ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF THIS WEBSITE, THE SERVICES AND THE INTERNET GENERALLY.

TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, OR IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR OWNERS, OFFICERS, MANAGERS, DIRECTORS, LICENSORS, EMPLOYEES OR REPRESENTATIVES REPRESENT OR WARRANT (I) THAT THE SERVICES OR INFORMATION OR CONTENT PROVIDED THROUGH THE SERVICE WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS OR MEET YOUR REQUIREMENTS OR BE ACCURATE, COMPLETE, RELIABLE, OR FAULT-FREE; (II) THAT THE SERVICE WILL BE AVAILABLE OR WILL BE UNINTERRUPTED, ACCESSIBLE, TIMELY, OR SECURE; (III) THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE WILL BE FREE FROM VIRUSES, "WORMS," "TROJAN HORSES" OR OTHER HARMFUL PROPERTIES; (IV) THAT THE SERVICES ARE NONINFRINGING. WE AND OUR AFFILIATES HEREBY DISCLAIM, AND YOU HEREBY WAIVE AND RELEASE US AND OUR AFFILIATES FROM, ANY AND ALL OBLIGATIONS, LIABILITIES, RIGHTS, CLAIMS OR REMEDIES IN CONTRACT OR TORT ARISING OUT OF OR IN CONNECTION WITH THIS TOU/EULA OR THE SERVICES.

LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMISSIBLE BY LAW, IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL WE OR ANY OF OUR AFFILIATES, OR ANY OF OUR OR THEIR OWNERS, OFFICERS, MANAGERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, INFORMATION PROVIDERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES (REGARDLESS OF THE FORM OF ACTION), INCLUDING WITHOUT LIMITATION ANY SUCH ACTION ARISING OUT OF (I) USE OF THE SERVICE BY ANY PERSON, INCLUDING BUT NOT LIMITED TO, ANY DAMAGE CAUSED BY ANY RELIANCE ON, OR ANY DELAYS, INACCURACIES, ERRORS OR OMISSIONS IN, ANY INFORMATION, (II) ANY USE OR INABILITY TO USE THE SERVICE FOR WHATEVER REASON, INCLUDING BUT NOT LIMITED TO COMMUNICATIONS FAILURE OR ANY OTHER FAILURE WITH TRANSMISSION OR DELIVERY OF ANY INFORMATION ACCESSED THROUGH THE SERVICE, OR (III) ANY GOODS OR SERVICES DISCUSSED, PURCHASED, OBTAINED, OR PARTICIPATED IN, DIRECTLY OR INDIRECTLY, THROUGH THE SERVICE, IN EACH CASE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

TO THE EXTENT SOME REMEDY IS REQUIRED BY APPLICABLE LAW WITH RESPECT YOUR USE OF THE SERVICE, YOUR EXCLUSIVE REMEDY REGARDING THE SERVICE SHALL BE THE REPLACEMENT OF ANY SUCH SERVICE OR COMPONENT OF THE SERVICE FOUND TO BE DEFECTIVE. IN NO EVENT SHALL OUR CUMULATIVE LIABILITY OR OUR AFFILIATES' CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS OF DIRECT DAMAGES RELATING TO THE SERVICES EXCEED THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID FOR USE OF THE SERVICE DURING THE ONE-YEAR PERIOD PRECEDING THE CLAIM.

GENERAL PROVISIONS

By using the Service, You:

• agree that the substantive laws of the state of Florida, without reference to its principles of conflicts of laws, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this TOU/EULA;
• agree that you may not assign any or all of your rights and obligations under this TOU/EULA without our prior written consent, which may be withheld in our sole discretion;
• agree that all provisions of this TOU/EULA relating to ownership of intellectual property and proprietary rights, warranty disclaimers, limitation of liability, and indemnification shall survive the termination of your use or access to the website, for whatever reason;
• agree that nothing in this TOU/EULA shall be deemed to convey any third party rights or benefits;
• agree that except as otherwise required by law (in which case Florida statutes of limitation shall apply), the arbitration of any cause of action or claim you may have with respect to the Service, this TOU/EULA or this website must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred;
• agree that if any portion of this TOU/EULA is ruled invalid or otherwise unenforceable, it shall be deemed amended in order to achieve as closely as possible the same effect as originally drafted and that the other provisions of this TOU/EULA remain in full force and effect;
• agree that no waiver of any breach of any agreement or provision of this TOU/EULA, nor any failure to assert any right or privilege contained in this TOU/EULA, shall be deemed a waiver of any preceding or succeeding breach of any agreement or provision;
• agree that the section titles in this TOU/EULA are for convenience only and have no legal or contractual effect; and
• agree that this TOU/EULA (including all policies, notices and other terms incorporated into this TOU/EULA by reference) constitutes the entire agreement between you and us with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral.

All parties and/or users agreeing to this TOU/EULA agree that any and all disputes, causes of actions or claims arising out of, in connection with or in any way related to this Agreement, or the products or services associated with this Agreement, shall be fully and finally settled in binding arbitration proceedings under the Rules of Arbitration of the American Arbitration Association in force at the time this Agreement is entered, by one arbitrator appointed in accordance with said Rules, with the specification that any such arbitral award shall be enforceable by any court having jurisdiction thereof. All parties seeking relief are to be bound by this arbitration provision as the sole method to determine any disputes arising from, in connection with, or related to this Agreement, including any actions to enforce or interpret this Agreement. The arbitration proceeding shall be construed in accordance with the applicable laws of the State of Florida. All Arbitration proceedings shall be held in Ft. Lauderdale, Florida.

All parties and/or users agreeing to this TOU/EULA agree that any and all disputes arising out of, in connection with or in any way related to this Agreement, or the products or services associated with this Agreement, shall be limited as to discoverable information which is requested pursuant to a subpoena, arbitration, discovery, or any other legal proceeding, by the following:

1. All relevant and discoverable information or data (in any form) shall be strictly limited to the dates of use by the user of the products and services offered hereunder who is requesting any such information. No discovery, including eDiscovery, shall be provided for timeframes outside the timeframe of use of the requesting party, and shall be limited to information or data that is reasonably accessible to us. All parties and users agree that these limitations are reasonable.
2. All relevant and discoverable information or data (in any form) requested for such applicable dates shall be provided in the format in which it is stored or archived, and shall not be required to be provided in any other format, and no reports of any kind not used regularly in the course of business shall be requested or created/produced.
3. We may request that parties and/or users cooperate in good faith regarding formulation of appropriate search terms and protocols in advance of any information or data search, including pre-search formulating of search terms, including semantic synonyms, search protocols, and post-search error sampling. Any production shall then be provided referencing such agreed protocols in lieu of individual discovery request responses.

Last Updated: December 27, 2011