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AGREEMENT

BY CHECKING THE BOX BELOW MARKED “I ACCEPT,” THAT CONSTITUTES YOUR ELECTRONIC SIGNATURE AND SIGNIFIES YOUR LEGALLY BINDING AGREEMENT TO BE BOUND BY EACH AND EVERY TERM AND CONDITION OF THIS AGREEMENT (“AGREEMENT”) YOU WILL BE AGREEING THAT YOUR USAGE OF EACH AND EVERY TOOL AND SERVICE WE PROVIDE WILL BE IN STRICT ACCORDANCE TO EACH AND EVERY TERM AND CONDITION OF THIS AGREEMENT. ANY USAGE OF ANY TOOL AND/OR SERVICE THAT IS PROVIDED TO YOU BY OUR COMPANY IS ALSO YOUR EXPRESS INDICATION THAT YOU AGREE TO BE BOUND BY EACH AND EVERY TERM AND CONDITION OF THIS AGREEMENT.

YOU EXPRESSLY STATE THROUGH YOUR ACCEPTANCE OF THIS AGREEMENT BY EITHER OF THE METHODS OF ACCEPTANCE OUTLINED ABOVE, OR BOTH, THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING CONTRACT AND THAT YOU HAVE NO PRESENT LEGAL REASON THAT YOU LACK THE ABILITY TO ENTER INTO A BINDING CONTRACT FOR ANY REASON OR LEGAL THEORY. IF YOU REPRESENT AN ENTITY, YOU WARRANT THAT YOU HAVE THE FULL AND UNLIMITED ABILITY TO LEGALLY BIND THE ENTITY YOU REPRESENT AND THAT YOU CAN AND DO BIND THAT LEGAL ENTITY TO EACH AND EVERY TERM AND CONDITION OF THIS AGREEMENT. YOU MAY NOT USE ANY TOOL OR SERVICE THAT IS PROVIDED TO YOU UNLESS YOU HAVE FULL LEGAL AUTHORITY TO EXECUTE THIS AGREEMENT ON BEHALF OF YOURSELF, OR IF YOU REPRESENT AN ENTITY, ON BEHALF OF THAT ENTITY.

PLEASE READ THIS LEGALLY BINDING AGREEMENT CAREFULLY. IF NECESSARY, CONSULT WITH YOUR ATTORNEY PRIOR TO MARKING “I ACCEPT” AND PRIOR TO USING ANY TOOL OR SERVICE THAT IS PROVIDED.

This website, and the tools and services provided hereto, are provided within the United States of America by Papaya Mobile Inc, a Delaware Corporation, (“USA Office” “We/” “Us”.) by agreement with Papaya Inc., a Cayman Island corporation (“Foreign Office” “Us”.) If you are an individual or entity operating from within the United States, you are entering into this Agreement with the USA Office. Otherwise, you are entering into this Agreement with the Foreign Office. We comply with the IAB Standard Terms and Conditions Version 3.0, which are hereby incorporated by reference as if fully set forth herein (“IAB Standard Terms,” with the exception of providing for mutual indemnification. The IAB Standard Terms may be viewed at http://www.iab.net/media/file/IAB_4As-tsandcs-FINAL.pdf .The IAB Standard Terms apply to media buys of one year or less. The IAB Standard terms do not apply to sponsorships and other arrangements involving content association or integration or special production, as the same will require a separate agreement between all relevant parties. Definitions for all key terms are as defined in the IAB Standard Terms. In the event of any conflict between the Terms of this Agreement and the IAB Standard Terms, the IAB Standard Terms shall prevail, unless a Court of Competent Jurisdiction should deem such to be unreasonable.

  1. General Terms
    1. During the registration process you will be required to provide us with various identifying information as well as contact information. You agree to provide us with wholly complete and accurate information only. You also agree to update your information so that it remains complete and accurate at all times.
    2. You agree to use each tool and service that we provide only for lawful purposes and that you will refrain from the violation of any civil, criminal and regulatory law in any jurisdiction, not just the jurisdiction in which you operate from, as provide for herein.
    3. You will refrain from using any tool or service we provide upon our request. You will refrain from using any tool or service that we provide until and unless we approve your usage in advance and you will cooperate with any review, investigation or questioning we have that we find, in our sole discretion, to be reasonable to ensure that we have properly investigated your intended or current use of our tools and services.
    4. We have published a privacy policy, which is hereby incorporated by reference as if fully set forth herein. You agree to review this privacy policy on a regular basis and agree to be bound by its terms and conditions if subsequently modified by us, as a condition of using the tools and services that we provide. The policy may be viewed at http://appflood.com/privacy_policy.
    5. Currently we do not charge a commission for our services. However, we anticipate that at some point in the future, we may find it appropriate to offer certain services on a fee basis. Some currently “free” services may become “paid for services” and/or we may offer additional, “premium” services at certain fees. Should we make any such changes, you will be informed and you will have the ability discontinue using our services should you wish to not pay for any services that we intend to offer on a “paid for” or “premium” basis.
    6. In order to protect the integrity of our targeted advertising, we will carefully review all publisher reported targeting information. Our method of scrutiny is a trade secret, but we reserve the right to deduct funds from publisher accounts if we, in our sole discretion, determine that any publisher has violated our terms, which require publishers refrain from issuing false targeting informational reports to us. In order to facilitate this, we shall with hold account balances for up to thirty days in order to complete our internal review of the integrity of publisher provided targeting data.
    7. Offsets for Anti-Gaming Research, Refusal to Pay for Non-Geniune Traffic, Indemnification. Should AppFlood determine, in our sole discretion, that you are “gaming” our system, that is, using any method at all of cheating in order to obtain benefits, money, or services that you are not entitled to, including fraudulent traffic results, AppFlood will internally investigate such activities. Should AppFlood conclude that you have gamed or attempted to game our system, we will impose a $150 per hour investigation fee, which you agree we may set off by deducting the same from any monies that we owe you for legitimate traffic. You agree you are not entitled to any information about our investigation except for us reporting to you that we have investigated, have concluded that you have either gamed or attempted to gain our system via fraudulent traffic or other illegal or improper actions, and the amount of funds we will be deducting as set off against your actions. We will impose this set off only if we have confirmed that you have either attempted to game or actually have gamed our traffic reporting system or similar systems that would result in you being paid monies that you have not legitimately earned. We reserve any and all other rights regarding your violation of these Terms of Service and the law. You agree that Appflood may also refuse to pay you for any non-genuine traffic that we have determined, in our sole discretion, to be fraudulent in nature. You agree to indemnify and hold us harmless from any costs, fees, charges, charge backs, and reasonable attorney’s fees that arise, or threaten to arise, from any form of gaming or attempt to game or defraud our advertising reporting system or any other system that we operate. You agree that this indemnification may, at AppFlood’s sole discretion, come in the form of a set-off that we impose against any monies that AppFlood owes you and that we may deduct the same from such funds. APPFLOOD WILL IMMEDIATELY SUSPEND ANY PARTNER WHO WE REASONABLY CONCLUDE IS CHEATING OR ATTEMPTING TO CHEAT OUR ADVERTISEMENT PAYMENT SYSTEM OR ANY OTHER SYSTEM WE OFFER, AND THAT WE HAVE NO DUTY TO REPORT OUR INTERNAL FINDINGS TO ANY SUCH SUSPENDED PARTNER.
  2. Promoted Applications
    Should you intend to make any significant or material content changes to existing Promoted Applications that impact or involve our SDK or API, you agree notify us in advance of making any such changes. We will determine, in our sole discretion, if your changes or modifications are “significant” or “material” in nature and impact our SDK or API upon our review of your proposed modifications. Failure to honor this requirement may result in our banning your modified Application from our service. Our acceptance of your modified Application is strictly in our sole discretion. Should we accept your modified Application, these terms and conditions continue to apply and remain in full force and effect. We may take up to one business week (seven (7) working days, holidays and weekends excluded) to review your proposed modifications. Modifications that do not involve our SDK or API are outside of the scope of this section.
    1. You agree to display the unmodified AppFlood Ad Units to the users of your Promoted Application(s). With the exception of ad integrated via the API, you may not resize, alter, change, modify, obscure, hide, obstruct, blur, minimize, watermark, or otherwise interfere with our intended usage of the AppFlood Ad Units display in any manner. Ads integrated via the API must be displayed in a industry standard, commercially acceptable manner. In the event that we determine, at our sole discretion, that ads are not being implemented in an industry standard, commercially acceptable manner, we reserve the right to suspend or terminate campaigns or accounts.
    2. You may not segment the users of the Promoted Application who are exposed to viewing the AppFlood Ad Unit, except as required for users under the age of thirteen (13), as set forth below. If you do not display the AppFlood Ad Units to all of the users of your Promoted Application, you must fully randomize the publication of the AppFlood Ad Units to your user popularion.
    3. You will ensure that the AppFlood Ad Units are published and displayed to, and any installs from AppFlood Ad Units, or any other use of the Service that we provide, will originate from actual live end users of your Promoted Application and not from any automated process, tool, script, robot, or engage in any falsification of user statistics in any manner or for any purpose.
    4. You will refrain from, including regarding assisting any third party or entity, doing or attempting to do anything that would harm our business, data, software, hardware of our own company or belonging to any user. You will accordingly, refrain from attempting to modify, circumvent, disable, violate, or interfere with the security or integrity of any process, data, software, hardware, or aspect of our business, including our website, tools, services, domain name registration, or cause us any harm in any manner at all. You will not issue oral or written threats of any nature that are not issued as a demand letter by licensed legal counsel. Unless you are a recognized search engine, you will not spider our site. You may not scrape data to use for any purpose, other than if you are a recognize search engine. Accordingly, you may not “crawl,” “spider” or otherwise index or in any non-transitional manner store or cache data or information obtained from any part of our website or tools and services offered unless you are a recognized search engine. All recognized search engines must conduct their crawling only if done so in a manner that does not injure our website, content published on the website, and with complete, accurate contact information provided in the robot’s header. You agree to indemnify us from any losses caused by misfiring scripts or any other harm caused by your authorized crawling of your indexing robot. You may not violate the intellectual property rights of our company or those of any user through the use of any authorized crawl of our website.
    5. You may not directly or indirectly decipher, decompile, disassemble, reverse engineer, or otherwise to attempt to derive any source code, software, scripts, business methods, patentable subject matter, or algorithms, or any intellectual property not published openly by us to the general public, or any tool or service that we provide. If you believe you are subject to and authorized to do so pursuant to any law of the United States or any individual state or territory in the United States, you will provide written notice of your intention to do so, and provide us with thirty (30) days written notice. You may not engage in any such action until we have reviewed your request and responded with specific authorization for the same. If we do not respond, you are not authorized to conduct any such activities. You agree to be bound by any reasonable limitations that are contained with our limited authorization.
    6. When you are connected to third party websites and applications through our Service, you agree that we do not control the content of such sites and that we merely provide a passive conduit to such sites. You agree that we do not endorse these third party sites and that we are not responsible or liable for their availability, content, advertising, products or privacy policies from such sites or other third party resources of any nature that we refer you to. You agree that you have the sole responsibility to research all aspects of such third party sites prior to your use of such sites.
    7. You will not use our Service, or any individual tool or service that we provide, in any way that violates any criminal, civil or regulatory law in any way, in any jurisdiction, including any intellectual property rights, right of privacy or publicity, or violate any civil, criminal or regulatory law of any nature, in any jurisdiction.
    8. If the Promoted Application is subject to any third party’s policies, guidelines, or terms, such as Facebook Inc.’s terms of use and privacy policy, you will agree to and comply with such legal documents prior to using any tool or service that we provide. In the event that you have been determined to be in violation of any the terms of any such legal documents, you will promptly provide us with notice of your violation, whether actual or merely accused, and share all related correspondence between yourself and the related third party company, or at your discretion, refrain from further use of any of our tools and services. You agree to hold us harmless and indemnify us of any losses, costs, fees and reasonable attorney’s fees that result from your actual or accused violation of such third party legal documents that arise during the course of your usage of any tool or service that we provide to you.
    9. You are solely responsible for any taxes, including withholding, filing, reporting, income taxes, payroll taxes and any other taxes, government tariffs and duties, except for AppFlood’s income related and other business taxes that are solely our responsibility, arising from your applications and use of the services and tools that we provide. Developers are solely responsible for the financial costs/processing fees charged to their accounts by Paypal, Credit Card Service Providers, and other third parties that the Developer uses to receive payments from us.
    10. You understand and agree that we do not guarantee that our tools, services and website will be available or free from errata or corruption on a twenty-four hour, seven day a week basis, or with a 100% degree of service reliability. We may suffer service outages, in whole or in part, from time to time. We are not responsible for the security or non-corruption of any data that is owned by you. We do promise to keep any errata and or downtime to a minimum. We are not responsible for any Act of God, insurrection, plague, civil unrest, revolution, incident of weather, strike, disruption, lack of Internet connectivity or other disruption in normal Internet services, denial of service attack, hacking, or any other act or event that is outside our control or otherwise caused by a third party. In the event of a Force Majeure event, we shall make reasonable efforts within five (5) business days to substitute transmission for the ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to you, we will allow you a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time and/or program changes at time of purchase. In addition, you shall have the benefit of the same discounts, if any had been offered to you and accepted by you, that would have been earned had there been no default or delay.
    11. You will refrain from knowingly publishing Ad Units or supply to AppFlood any data on end users who are under the age of 13. If you become aware of any user that is under the age of 13 years of age, you will notify AppFlood so that we may delete any data on such user. If you are subject to the privacy policies of any nation other than the United States of America, you will comply with all privacy policies of that nation. You may be subject to the privacy policies of other nations if you obtain personally identifiable data, as defined by that nation, from users in nations other than the USA, if so, you warrant that you have obtained suitable legal advice regarding your legal obligations and you are complying with those laws.
    12. We may post rules, guidelines, and policies on our website, collectively referred to herein as “Rules.” You understand and agree that such rules are hereby incorporated by reference into this Agreement as if fully set forth herein and you will comply with such rules. Should we add to or otherwise alter or modify such Rules, the current version of such Rules are incorporated herein and you will comply with all such Rules without our having a requirement to modify the terms and conditions of this Agreement.
    13. Insertion Orders and Inventory Availability. We shall provide the following information: the types and amounts of advertising services provided (“Deliverables”), the maximum amount of money to be spent by you on the advertising, the start and end dates of the campaign, and the identity of and contact information for any Third Party Ad Server. We will make all commercially reasonable efforts to notify you within two (2) business days of your advertising order if the specified inventory is not available should you otherwise place an order through us that we accept. No revisions to orders can be accepted unless you and we agree to the same in a separate written agreement.
    14. Ad Placement and Positioning. We will provide advertisement placement and positioning pursuant to any order specifications we offer and accept. Changes in ad placement and positioning once ordered must be made in writing acknowledged by both you and us. Should a Site that bears your advertising make any material changes to the size or placement of your ad, as agreed to between us, we shall use commercially reasonable efforts to provide you with at least ten (10) business days prior notice of such pending changes. If such a modification should take place, with or without notice, you may cancel the remainder of the affected placement without penalty if you do so within the ten (10) day notice period. Such cancellation is your sole remedy for such a change. If we have failed to provide ten (10) days notice of such a change, you may cancel the affected agreement placement within thirty (30) days of such modification, and you will not be charged for such affected ads delivered after such modification. Technical specifications for all ad placements will be as set forth on our website or through or advertising purchase process.
    15. Editorial Adjacencies. We understand that certain advertisers may not want their ads placed adjacent to content that promotes pornography, violence, the use of firearms, contains obscene language or falls within other categories as may be agreed to between ourselves. We will make commercially reasonable efforts to comply with all such editorial adjacencies related restrictions that we may agree to. Should we agree to such editorial adjacencies, will endeavor to obtain contractual representations from all related publishers of your ad content to agree to such restrictions. Should your ads appear in violation of any such editorial adjacencies agreement between us, your sole remedy is to request in writing that we remove the ads and provide makegoods, and if no makegood can be agreed to between ourselves, we shall issue a credit to you equal to the value of the ads, or not bill you for those ads. If a makegood and or a credit can be shown to be commercially infeasible for you, then we will negotiate an alternative solution. After you notify us that a specific ad is in violation of agreed to editorial adjacency guidelines, we will make commercially reasonable efforts to correct such violations within 24 hours. If such correction materially and adversely impacts the insertion order, you and we will negotiate with in good faith to address such impacts. You will not be entitled to any remedy for any violation of agreed to editorial adjacency guidelines resulting from limitations as set forth in the IAB Standard Terms.
    16. In the event that there is a discrepancy between the install data provided by the advertiser, the publisher, or PapayaMobile, the data as housed by PapayaMobile shall be considered the final, accurate, complete version.
    17. Publisher Withdrawal of Funds. The Publisher may request to withdraw funds no earlier than thirty days subsequent to the publication of the related advertisement and after we have received full payment from the advertiser.
  3. Account Security
    A. You are solely responsible for the security of your account, user ID, and password. You agree to refrain from sharing your user ID and password with anyone. You agree to be the sole person or entity responsible for all usage of your account. You may never loan your account usage to any third person or entity. It is for your use alone. You will never use a third person’s account without our written permission. You will notify us immediately if any unauthorized use of your password or account or other breach of security has taken place. You are solely responsible for any harm that has taken place if you fail to promptly notice of us of any actual or suspected security issues affecting your account.
  4. Licenses and Intellectual Property Rights
    1. All trademarks, service marks, and intellectual property, including copyrights, published in our service and elsewhere are the sole intellectual property of their individual owners. You agree to refrain from any unauthorized usage of such intellectual property. You agree that authorization may take the form of a written authorization or license as issued to you by the respective owner. All rights to all intellectual property as published on our [?] are reserved by the respective owners of such intellectual property rights and no further notice to you is required.
    2. We acknowledge that we have no claim of any nature in intellectual property that you own or solely control, including your Promoted Application, trademarks, service marks, copyrights or other aspects of intellectual property.
    3. As a condition for your use of our tools and services, you agree to provide and do provide AppFlood with a limited, free, revocable, royalty-free, non-exclusive, license to use your name, logo, title, trademark, service mark and other intellectual property for the sole purpose of providing service to you. You may withdraw from usage of our service at anytime, and this license will then lapse and be of no further legal effect.
    4. You agree that each user of the Service shall be provided an non-exclusive license to link to and direct users to your Promoted Application through our Service and as such, you grant a limited, revocable, free license for the publication of your intellectual property in order to facilitate such activities on your behalf, including the copying, duplication and display of your promotional materials, trademark, service mark, artwork, graphics, videos, audio, templates and other promotional material that you provide for the purpose of our provision of services to you.
  5. User Generated Content and Submissions
    1. You are solely responsible for the content that you submit for use on our Service including any promotions or advertising content to be displayed on the AppFlood Ad Units (“Submissions.”) You warrant and promise that such Submissions will be wholly lawful in nature and will not be of a threatening, harmful, offensive, intolerant, defamatory, misleading, deceptive, obscene, indecent nature and will not violate any civil, criminal or regulatory law of any nature in any jurisdiction nor violate the privacy rights of any individual or entity.
    2. You warrant and promise that you won or possess the legal right to submit and use any Submissions and such usage will not violate or infringe the rights of any third person or entity.
    3. You retain ownership in and the ability to license your Submission and any content in the Submission. You hereby grant AppFlood 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 AppFlood’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.
    4. You are solely responsible for your (i) own Submission and the consequences of posting or publishing it and (ii) the actual implementation of the AppFlood Ad Units including the AppFlood SDK and/or API on your Promoted Application. AppFlood 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, including damages, royalties, costs, fees and our reasonable attorney’s fees, incurred in connection with use of or exposure to any Submission made available via the Service and you agree to hold us harmless and defend us from any third party claims, whether threatened or actual, arising from your submitted Submissions.
  6. Earning and Spending
    1. Terms Specific to Advertisers. Advertisers are invited to sign up for an AppFlood account and will connect their app to the exchange by installing the AppFlood SDK or connecting to us via our API. Advertisers may create a campaign targeting particular nations, operating systems and various other targeting elements or factors that we may offer. Advertisers are solely responsible for the creative elements of their campaign and shall upload their “creative” to AppFlood.

      Advertisers shall set a bid, denominated in dollars, for how much the advertiser is willing to pay for an install in any particular advertising campaign and may set a daily campaign budget. The amount spent will be deducted from the advertiser’s account as the campaign is fulfilled.

      There is no refund offered for funds uploaded into a user’s account.
    2. Terms Specific to Publishers. Publishers are invited to sign up for an AppFlood account where they can connect their apps to the AppFlood exchange by installing the AppFlood SDK or connect to AppFlood via the AppFlood API. Publishers may opt to “blacklist” any particular advertiser. Publishers will set the types of information made available to advertisers, such as nation, operation system, software version and so forth. Such information will be limited to the data that we are able to provide. Once the publication goes live, each time a user within your app is shown an advertisement, we will display the advertisements from advertisers on our platform. You will then receive the bid for that ad credited to your publisher account. You may cash out your balance via either your Paypal account, of if you wish to reduce fees, via Bank Transfer to your designated bank account.
    3. Terms Specific to Exchanger Accounts. Exchangers are invited to sign up for an AppFlood account and may connect their apps to the exchange by installing the AppFlood SDK or connecting to AppFlood via the AppFlood API. Once live, you will build up credit which you can use to purchase installs for your app or other apps that you associate with your account. You may either set your bids yourself of simply use the default bid. You may use the funds you earn to bid on acquiring installs from others or your may cash out any funds you have earned.
  7. Confidential Information and App Flood Data
    1. You agree and acknowledge that AppFlood may retain and use for its own purposes all information and data you provide to us, including but not limited to app demographics and contact and billing information. You agree that AppFlood may transfer and disclose to third parties personally identifiable information about you for the purpose of approving and enabling your participation in the Service and as necessary to provide services to you. AppFlood disclaims all responsibility, and will not be liable to you, and you agree to hold us harmless, for any disclosure of that information by any such third party.
    2. You are required to notify us at least three (3) business days in advance of any material changes to any applicable privacy policy you publish and shall provide us with the revised copy of the privacy policy prior to the effective date of the change(s). If we require our own legal counsel to review the privacy policy, you shall remit a flat fee of $250 for that purpose and make any changes as required by our in house counsel.
    3. You represent and warrant that the information and data you share with AppFlood in performance of this Agreement is data (i) which you have the right to share with AppFlood pursuant to your privacy policy and in compliance with applicable laws (ii) that the same data is not shared or provided to AppFlood in violation of your privacy policy or of any laws or regulations or any jurisdiction, including those governing privacy rights and (iii) AppFlood is free to use such data for any legal purpose pursuant to our normal business practices.
    4. You also agree and acknowledge that AppFlood may collect, gather, use, market, sell and advertise information and statistical data (“AppFlood Data”) regarding the AppFlood Ad Units and any end user activity with the Service in connection with your Promoted Application subject to AppFlood’s Privacy Policy available at http://appflood.com/privacy_policy.
    5. You also acknowledge and agree that AppFlood Data shall remain the sole property of AppFlood and may not be copied or reproduced, altered, modified, changed, broadcast, distributed, transmitted, transferred, disseminated, sold or offered for sale, trade, or for no consideration at all, in any manner, at any time anywhere in the world, for any purpose, except as expressly authorized in writing by AppFlood. Nothing herein shall be construed as a license, grant or assignment to you or any third party of any right, title or interest in any AppFlood Data owned by AppFlood, including, without limitation, any of its trademarks, service marks, intellectual property of any nature, or any other property or rights.
  8. Term
    1. This Agreement shall remain in full force and effect while you use our Service. All terms and conditions that would reasonably survive the termination of this Agreement shall so survive.
    2. You may terminate your use of this Service at anytime, with or without notice to us, but you shall immediately stop using each and every tool and service that we provide at the time you elect to terminate this Agreement.
    3. Should you terminate this Agreement, you must immediately follow any termination of Service instructions we have published on our website. You understand that closing your account with us may result in the irretrievable loss of your data and information related to your user account.
    4. We may terminate your user account and your ability to access, duplicate, preserve, data or use our tools and services at any time, without no notice or explanation to you, for any reason we deem in our sole discretion to be appropriate, without having any duty to provide any explanation or justification to you, which may include the destruction of any statistics, data, or information (“user data”) otherwise reachable or used by you, without any compensation of any nature provided to you regarding any such loss. You agree to hold us harmless from any damages relating to such destruction of such user data.
  9. Changes and Modifications to the Service and Website.
    1. We reserve the right to modify, change or replace any of the conditions and terms of this Agreement with no prior notice to you. Your continued use of any tool or service that we provide is your express indication to us that you agree to be bound by each term and condition of any subsequent version of this Agreement. While we may provide you with notice of a new version of this Agreement, by either email or by posting a notice on our website, we have no duty to do so. Consequently, you agree to read this Agreement at least on a weekly basis. We shall post a notice at the top of this Agreement to disclose if the Agreement is a new edition.
    2. If you do not wish to agree to the terms and conditions of any subsequent version of this Agreement, your sole remedy is to stop using our tools and services and close your membership account with us.
  10. Legal Terms
    1. THE TOOLS AND SERVICES THAT WE PROVIDE, INCLUDING ALL FUNCATIONALITIES AND INFORMATON OF ALL AND ANY NAURE, RELATED IN ANY WAY TO OUR SITE OR ANY THIRD PARTY SITES OR SERVICES LINKED TO FROM OUR SITE IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATABILITY AND NONINFRINGEMENT. WE DO NOT WARRANT THAT ANY CONTENT, TOOL OR SERVICE WILL BE ERROR-FREE, THAT ACCESS THERETO WILL BE UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT OUR SITE OR THE SERVERS THAT MAKE SUCH CONTENT, TOOLS AND SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR SHALL PRODUCE ANY PARTIUCULAR RESULT, PROFIT OR GAIN. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY CONTENT, TOOL OR SERVICE. YOU HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST US WITH RESPECT TO CONTENT, TOOL OR SERVICE AND ANY CONTENT YOU PROVIDE TO THIRD PARTY SITES (INCLUDING CREDIT CARD AND OTHER PERSONAL INFORMATION).
    2. LIMITATION OF LIABILITY, INDEMNIFICATION REQUIREMENTS
      Limitation of Liability. Excluding each party’s respective obligations as set forth herein, or where indemnification is required as set forth below, in no event will any party be liable for consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of a ad insertion order, even if such party has been advised of the possibility of such damages.

      Indemnification is not provided or agreed to between the parties. Any legal action for damages of any nature are subject strictly to the finding of a Court of Law.

      As set forth in Section 10 of this Agreement, jurisdiction is limited to the Courts of San Francisco, California and all legal disputes, will be resolve exclusively via mandatory binding arbitration.
    3. TERMINATION. WE MAY TERMINATE YOUR FURTHER ACCESS TO OUR SITE OR CHANGE OUR SITES AND ITS TOOL AND SERVICES OR DELETE CONTENT, TOOLS, SERVICES, FUNCTIONALTIES, OR FEATURES IN ANY WAY, AT ANY TIME AND FOR ANY REASON OR NO REASON. Termination of on going advertising, whether for cause or not, shall be subject to the limitations and requirements of the IAB Standard Terms.
    4. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION AND ELSEWHERE IN THESE TERMS OF USE APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
  11. NON DISCLOSURE AND CONFIDENTIALITY
    1. Definitions and Obligations. “Confidential information” will include all information marked as “confidential,” “proprietary,” or similar legend by the disclosing party when given to the receiving party. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a reasonable need to know the same, and who is bound by confidentiality and non-use obligations at least as protective as those in this section. Recipient will not use Discloser’s Confidential Information other than as provided for by mutual written agreement.
    2. Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously know to the Recipient; (ii) was or becomes generally available to the public through no fault of the Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser, (iv) was developed by employees or agents of Recipient independently of Recipient, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
    3. Compliance with Law. At all times all parties are free to disclose Confidential Information as may be required to comply with all federal, state, and local laws, ordinances, regulations, and codes or as reasonably necessary for the enforcement of the Terms and Conditions of this Agreement.
  12. JURISDICTION, ARBITRATION AND MISCELLANEOUS TERMS
    1. Jurisdiction and Arbitration. This Agreement will be governed by and construed in accordance with the internal laws of the State of California, excluding that body of laws known as choice of law or conflict of laws. Subject to the provisions of this section, all disputes, controversies or claims arising out of or relating to this Agreement will be resolved through mandatory binding arbitration conducted in San Francisco, California, before J.A.M.S./ENDISPUTE or its successor ("JAMS") pursuant to the United States Arbitration Act, 9 U.S.C. Section 1, et seq. (the "Act"); and the terms and conditions of this Agreement. The arbitration will be conducted in accordance with the provisions of J.A.M.S.'s Streamlined Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration (the "JAMS Rules"), subject to the provisions of this Section. The terms set forth in this Agreement will control in the event of any inconsistency between such terms and the JAMS Rules. The parties will cooperate with JAMS and with each other in promptly selecting a single arbitrator from JAMS's panel of neutrals. If the parties fail to so select an arbitrator within thirty (30) days following the date of either party's notice of demand to conduct arbitration, then JAMS will appoint an arbitrator in accordance with the JAMS Rules. The award of the arbitrator will be in writing and will set forth findings of fact and conclusions of law. Judgment on the arbitrator's award will be final and binding upon the parties and may be entered in any court having jurisdiction thereof. If for any reason JAMS or its successor no longer is in business, then the arbitration shall be conducted in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitrator's fees will be shared equally by the parties and each party will initially bear its own costs and attorneys' fees, but the prevailing party shall be reimbursed by the other party for all attorneys fees, witness fees, and arbitration costs. All papers, documents, or evidence, whether written or oral, filed with or presented in connection with the arbitration proceeding will be deemed by the parties and by the arbitrator to be confidential information of both parties. The arbitrator chosen in accordance with these provisions will not have the power to alter, amend or otherwise affect the terms of these arbitration provisions or the provisions of this Agreement. Notwithstanding the foregoing, nothing in this section shall prevent either party from applying for and obtaining from a court a temporary restraining order and/or other injunctive relief.
    2. The Relationship of Parties hereto this Agreement are as independent businesses only, and nothing in this Agreement or the conduct of the parties pursuant hereto shall establish a relationship of principal/agent, franchiser/franchisee, employer/employee, master/servant, or otherwise.
    3. This Agreement represents the complete agreement concerning the subject matter hereof between the parties and supersedes all prior agreements and representations between them.
    4. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.
    5. The failure of AppFlood to act with respect to a breach of this Agreement by you or by others does not constitute a waiver and shall not limit AppFlood’s rights with respect to such breach or any subsequent breaches.
    6. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our consent and any action or conduct in violation of the foregoing shall be void and without effect.
    7. AppFlood expressly reserves the right to assign or transfer this Agreement, in whole or in part, without any notice to you, and/or to delegate any of its obligations hereunder. You may not transfer or assign this Agreement in any manner without the written permission of AppFlood, which will not be unreasonably withheld. This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed entirely within California and without reference or regard to its conflict of laws provisions, pursuant to mandatory, binding arbitration as set forth herein.
    8. Notice. Any notices required under this Agreement shall be made by AppFlood to the e-mail address you have used to register for the Service, or the last known address you have provide to us, and shall be made by you to the e-mail address info@AppFlood.com. Our email to your as indicated herein and to AppFlood as indicated herein shall serve as the required written notice.