Terms of Service

Veriplace Developer Terms of Service

Last updated March 1, 2010

Introduction.

Please read this Veriplace Platform Developer Terms of Service, including all schedules and other documents incorporated by reference (“Agreement” or “TOS”) carefully as they apply to Developer’s use and access to the Veriplace Platform, as defined below. This Agreement allows Developer to test Developer Applications, defined below, and subject to separate written WaveMarket approval, make such applications commercially available.

WAVEMARKET PROVIDES THE VERIPLACE PLATFORM ON THE CONDITION THAT DEVELOPER ACCEPTS ALL OF THE TERMS HEREIN. BY CLICKING "I AGREE,” OR BY USING OR ACCESSING THE VERIPLACE PLATFORM, DEVELOPER AGREES ELECTRONICALLY TO ALL OF THE TERMS AND CONDITIONS HEREIN, INCLUDING ANY TERMS INCORPORATED BY REFERENCE, AS MAY BE AMENDED FROM TIME TO TIME AND THAT THIS AGREEMENT FORMS A LEGALLY BINDING CONTRACT BETWEEN DEVELOPER AND WAVEMARKET, INC.

DEVELOPER UNDERSTANDS THAT WAVEMARKET RESERVES THE RIGHT TO MODIFY THE TOS AND POLICIES RELATING TO THE VERIPLACE PLATFORM AT ANY TIME AND TO SUSPEND AND/OR TERMINATE THE TOS AT ANY TIME.

IF DEVELOPER DOES NOT AGREE TO ANY OF THE TERMS HEREIN, THEN DEVELOPER MUST CEASE USE OF AND/OR NOT ACCESS THE VERIPLACE PLATFORM.

IF THE PERSON AGREEING TO THESE TERMS OF SERVICE ACCEPTS THEM ON BEHALF OF HER/HER EMPLOYER OR ANY OTHER ENTITY, THEN HE/SHE REPRESENTS AND WARRANTS THAT HE/SHE HAS THE FULL LEGAL AUTHORITY TO BIND HIS/HER EMPLOYER OR ANY SUCH OTHER ENTITY TO THESE TOS.

IN THE EVENT OF ANY CONFLICT AMONG THE TERMS AND CONDITIONS IN THE TOS AND THOSE INCLUDED IN ANY VERIPLACE DOCUMENTATION, THE TOS WILL GOVERN.

General Terms and Conditions

1. Definitions.

1.1 Developer means any individual or any legal entity that develops Developer Applications. Developer may not be any competitor of a wireless carrier from which End User Data is obtained by Veriplace (i.e. AT&T Wireless, Sprint, T-Mobile) (collectively “Wireless Competitor”). For illustration purposes only, AT&T Wireless will be deemed a Wireless Competitor to Sprint and T-Mobile. Developer may contact WaveMarket in writing for a list of wireless carriers and Wireless Competitors.

1.2 Developer Application means any software application developed by Developer that interfaces with the Veriplace Platform.

1.3 End User means any individual that accesses, subscribes to or in any way uses any Developer Application and an End User may not be a Wireless Competitor or any person acting on behalf of a Wireless Competitor.

1.4 End User Data means any data that Developer receives from the Veriplace Platform about an End User and may include personally identifiable information, location-based data, among other information.

1.5 Intellectual Property Rights means any patent rights, copyright, trade secret rights, trademark rights (including rights in trade names, trade dress, service marks, URLs or other source of business identifiers), rights in industrial property and industrial designs, moral rights and all other intellectual property or proprietary rights arising under the laws of any jurisdiction worldwide, including all rights or causes of action for infringement or misappropriation of any of the foregoing, and all rights in any registrations, applications, renewals, extensions, continuations, continuations-in-part, divisions or reissues for any of the foregoing.

1.6 SDK means the resources that WaveMarket makes available to Developer to aid in development of Developer Applications, including but not limited to driver code, sample code, SDK documentation and other tools. WaveMarket makes available the SDK under a separate open-source license and the use of the SDK is governed solely by that agreement. Accessing the Veriplace Platform either through the SDK or other means is governed by these TOS.

1.7 Veriplace Developer Site or Site means the web site where WaveMarket posts Veriplace Documentation, marketing guidelines, trademark guidelines and other materials referenced herein or otherwise related to the Veriplace Platform. The Veriplace Developer Site may be accessed at http://developer.veriplace.com.

1.8 Veriplace Documentation means the documentation applicable to Veriplace Platform that WaveMarket makes available from time to time under these TOS. Veriplace Documentation does not include any resources included in the SDK.

1.9 Veriplace Platform or Veriplace means the service, the corresponding Veriplace Documentation and any software code, material, data and/or any other information that WaveMarket makes available under these TOS to facilitate Developer Applications access to End-Users’ location-based data, identity, presence, participation in the Veriplace platform and corresponding privacy preferences or other data.

2. The Veriplace Platform and Requirements.

2.1 Veriplace Developer Account. To access the Veriplace Platform, Developer will register for a Veriplace Developer account at the Site. WaveMarket will provision credentials for each Developer Application and Developer must use such credentials to access the Veriplace Platform API. Developer will be responsible for any activities associated with credentials assigned to it.

2.2 Privacy. Developer will develop and apply to any Approved Application a privacy policy that (a) complies with applicable law; (b) complies with these TOS; (c) accurately and adequately discloses, how Developer collects, uses, stores and discloses data collected from End Users, including but in no way limited to the disclosure to third parties such as advertisers, among others; (d) complies with wireless carriers’ privacy policy; and (e) is compliant with CTIA’s Best Practices and Guidelines for Location Based Services, which is hereby incorporated by reference (as may be amended during the Term). Developer is responsible for its collection, access, disclosure and use of End User Data. Developers may not re-sell End User Data to third parties except as approved in writing by WaveMarket.

2.3 End User Consent. Developer acknowledges that Veriplace as required by Wireless Carriers provides notices to End Users, obtains consents concerning sharing of End User Data from End Users and allows them to revoke any such consents. Developer represents and warrants that it will utilize End User Data solely for providing a response with respect to the given Approved Application.

2.4 Developer Applications and Terms for Approved Applications. Developer will be responsible for any development, operation, distribution, marketing, billing (if any), customer support, maintenance and any other aspect of any Developer Application. Developer will be responsible for any activities and/or usage of Veriplace by Developer or its End Users. Developer will obtain and maintain any licenses, permits or other permissions necessary to offer any Developer Application. Prior to allowing any End User to access or otherwise utilize an Approved Application, Developer will (a) disclose to End Users any terms relating to the purchase and use of the Approved Application; (b) require End Users to comply with terms at least as restrictive as these TOS, including without limitation, the WaveMarket and wireless carriers’ disclaimers and limitations of liability and the Content Requirements; and (c) incorporate any additional end user terms that WaveMarket posts on the Site from time to time (“End User Terms”) and which are hereby incorporated by reference.

2.5 End User Data Storage. (a) Developer will permanently destroy any End User Data by the earlier of (i) midnight local time on the Expiration Date; (ii) 5:00 pm local time on the fifth (5^th) business day after notice from WaveMarket requesting that Developer delete such data; or (iii) any date required by applicable law. For purposes of these TOS, “Expiration Date” will mean the date that the Veriplace Platform assigns to End User Data.

(b) In the event of a data breach or other suspicious activity concerning any Developer computers, systems or networks that directly or indirectly either store or allow access to End User Data, Developer will (i) notify WaveMarket in writing as soon as possible and no later than 24 hours of Developer having knowledge of such event; and (ii) immediately commence efforts to remedy such.

(c) The Veriplace Platform does not require Developer to store End User Data outside of Veriplace. To the extent that Developer elects to store any End User Data obtained from the Veriplace Platform on any computer/network/system that is not Veriplace (”Developer Network”), Developer will store and protect End User location data on servers located in the United States and in a manner that is, at a minimum, consistent with best industry standards and applicable law. For any computer/network/system through which End User Data may be accessed, Developer will be responsible for (i) utilizing up-to-date anti-virus protection is utilized, current patches, password-required authentication at login are installed and a verifiable record of all computers including serial number and name of employee utilizing such is maintained; (ii) allowing only employees, contractors and any service providers who both have agreed in writing to protect such data consistent with the terms herein and have a need to know such information for purposes of Developer fulfilling its obligations herein will have access to such data; (iii) implementing administrative, physical and technical safeguards that prevent the unauthorized collection, access, disclosure and use of End User Data; (iv) encrypting End User Data, at rest or in transport, where possible.

2.6 Content Requirements. Developer will adhere to and require its End Users to adhere to the content requirements posted on the Veriplace Developer Site (“Content Requirements”) and which are hereby incorporated by reference.

2.7 Usage Limitations. Developer will adhere to any usage limits that WaveMarket may impose, including without limitation, the number of times a Developer or any Approved Application may “call” or invoke the Veriplace Platform.

2.8 Reporting. Developer will promptly provide to WaveMarket reports pertaining to any errors, bugs, problems or any other feedback related to security, privacy or related issues that Developer may encounter when utilizing the Veriplace Platform. Developer may voluntarily provide to WaveMarket reports pertaining to other types of errors, bugs, problems or any other feedback it encounters when utilizing the Veriplace Platform. Developer acknowledges and agrees that any suggestions, revisions or problems encountered with the Veriplace Platform, including but not limited to, fixes, revisions, functions, flaws, bugs and test results, will be communicated only to WaveMarket, will be WaveMarket’s exclusive property and will be kept strictly confidential and Developer will not disclose such to any other person, entity or third party.

3. Developer Applications.

3.1 Access to Veriplace. Subject to the terms herein, Developer may access the Veriplace Platform to perform evaluation, internal development, prototyping and testing of Developer Applications with Veriplace prior to Developer launching, marketing or otherwise making such applications commercially available to End Users (“Authorized Use”). Authorized Use includes Developer submitting location queries to Veriplace and receiving either simulated test data or live data in response. If Developer requests live data for such testing, it will pay the fees for such data as set forth herein (“Test Fees”). Subject to the terms herein, WaveMarket grants Developer and Developer accepts a limited, non-exclusive, non-transferable and non-assignable license to access Veriplace and to use, reproduce, re-format and display End User Data (i) for an Authorized Use; and/or (b) solely to provide a response to an Approved Application (as defined in Section 3.2).

3.2 Approved Application. Upon Developer’s written request, WaveMarket may approve Developer making a given Developer Application available to third parties for commercial purposes (“Approved Application”). Developer acknowledges that approval may be dependent on WaveMarket testing/certifying a Developer Application with a wireless carrier, a wireless carrier’s approval and/or subject to wireless carriers’ fees. Developer will (a) pay any third party providers’ costs applicable to such testing; and (b) comply with any applicable testing/certification requirements. If any Developer Application is initially rejected, Developer may reasonably re-submit such application after making necessary modifications. Upon approving Developer’s request, WaveMarket will issue a written addendum to these TOS describing any terms and conditions applicable to a given Developer Application (including terms imposed by wireless carriers) (each a “AA Schedule”). Unless Developer rejects the AA Schedule in writing within five business days of receipt, Developer will be deemed to have accepted the AA Schedule and will pay the fees set forth in the Pricing Schedule. Developer grants WaveMarket the right to share any test/certification information with the applicable wireless carriers. Developer acknowledges that any wireless carrier may require Developer to re-submit an Approved Application during the Term. Upon notice of such from WaveMarket, Developer will timely re-submit the given Approved Application or discontinue use of Veriplace with respect to such.

3.3 Modifications to Approved Applications. Developer will (a) not materially modify the functionality of an Approved Application with respect to content it acquires through the Veriplace Platform (“Material Changes”) except as set forth in this section; and (b) remain solely responsible for the Approved Application as submitted or later modified. Prior to making any Material Changes, Developer will obtain WaveMarket’s prior written approval, which may in turn include wireless carrier approval. Upon approving any Material Change, WaveMarket reserves the right to issue an AA Schedule describing any fees, terms and conditions that may be applicable to the modified Developer Application (including terms imposed by wireless carriers). Unless Developer rejects any such additional terms in writing within five business days of receipt, Developer will be deemed to accept such.

3.4 Developer’s Application. Developer develops Developer Applications at its sole option and risk and WaveMarket will have no responsibility or liability for any Developer Application, including without limitation any third party applications, data or content that any Developer Application may access or provide. WaveMarket reserves the right to not approve a Developer Application, for any reason or no reason. Developer represents and warrants that any Developer Application does not and will not violate, misappropriate or infringe upon the rights of WaveMarket or any third party, including intellectual property, privacy or other personal or proprietary right.

3.5 Veriplace Exclusivity. Developer represents and warrants that it will obtain location data for any Approved Application exclusively from Veriplace. For clarity, Developer (a) may make commercially available any application that is the same as or similar to an Approved Application ("Other Version"), provided that Developer brands and markets the Other Versions with names that are not the same as or similar to that of any Approved Applications; and (b) Developer will utilize Veriplace to obtain location data for any mobile device End Users may utilize with Approved Applications, including without limitation smart phones and GPS phones. Developer acknowledges that this Section 3.5 is a material term as it ensures Veriplace complies with consents it obtains from End Users.

3.6 Developer Marketing Approved Applications and Press Releases. Subject to any marketing guidelines that WaveMarket makes available on the Site (“Marketing Guidelines”), which are hereby incorporated by reference, Developer will (a) not market any Approved Application as being endorsed by any wireless carrier unless WaveMarket or such carrier provides prior written approval for such marketing; or (b) market and otherwise identify Approved Applications as being “protected with Veriplace”; and (c) comply with the Mobile Marketing Association’s “Consumer Best Practices for Mobile Content Services” which are hereby incorporated by reference (as may be amended) (and available at http://mmaglobal.com/main). Developer will not issue a press release with respect to WaveMarket, the Veriplace Platform, a wireless carrier or these TOS without WaveMarket’s prior written consent.

3.7 Developer Data. Developer hereby grants WaveMarket a worldwide, perpetual, irrevocable, non-exclusive, assignable right and license to, with the right to sublicense, access, reproduce, display, distribute, perform and store any data deposited on the Veriplace Platform by any Developer Application (“Developer Data”).

3.8 Marketing Approved Applications. WaveMarket may use Developer’s name, logo, any Approved Application name and/or logo (“Developer Marks”) for promotional, advertising and marketing on or related to Veriplace.

3.9 Developer Customer Care. (a) Developer will provide, at its sole expense, training and customer care to all its End Users. Developer will promptly respond to inquiries from WaveMarket and/or resolve customer care issues related to Developer Applications. Developer will provide and maintain its customer care contact information in Veriplace which will make it available to applicable wireless carriers.

(b) Developer will provide support to End Users for Approved Applications for the later of: (i) 90 days from the End User’s initial purchase of the Approved Application; (ii) the expiration of the period of time indicated to End User that the Approved Application will be available or supported; and (iii) the date support services stop for all users of the Approved Application that have obtained the Approved Application from distribution channels other than applicable wireless carrier. Upon stopping support, Developer will (a) provide at least 65 days prior written notice to WaveMarket that the Approved Application will no longer be supported; and (b) provide written notice to each End User at least 30 days before support stops for the given Approved Application.

3.10 Safeguards. Developer will carefully consider the safety implications of each location based service it offers and implement the appropriate safeguards to address foreseeable risks. Developer will continuously monitor the use of Approved Application(s) for any activity that violates these TOS, including without limitation any fraudulent, inappropriate or potentially harmful behavior and promptly restrict the offending users from any further use. Developer will provide a resource to which End Users may report abuses related to the Approved Application and a process for timely resolution of any such reports.

4. WaveMarket Rights and Obligations.

4.1 Veriplace Platform. WaveMarket may, with or without notice, change or discontinue any aspect of the Veriplace Platform at any time for any reason or no reason (“Veriplace Platform Changes”). Other than wireless carries changes, WaveMarket will use commercially reasonable efforts to make changes in the aggregate that result in Veriplace having features that are at least equal to or greater than those available as of the effective date of any Approved Application. For any material change or permanent discontinuation, WaveMarket will endeavor to provide prior notice to Developer. Developer acknowledges and agrees that any change to Veriplace may be incompatible with Developer Applications (i.e. no backwards compatibility). Developer’s continued use of the Veriplace Platform after any such Veriplace Platform Changes will be deemed acceptance of such. Unless required otherwise, Developer will comply with any modified technical or other requirements within 30 days of receipt of notice from WaveMarket. If Developer rejects or cannot comply with any proposed change, then Developer must immediately cease accessing the Veriplace Platform and all rights and licenses granted to Developer under these TOS will terminate immediately. WaveMarket is not obligated to provide (a) any error corrections, updates, upgrades, bug fixes and/or enhancements; or (b) support services for the Veriplace Platform; but it may do so in its sole discretion.

4.2 Changes to TOS. To modify these TOS, including any End User Terms, Content Requirements, AA Schedule, Pricing Schedule or other document made part of this Agreement, WaveMarket will provide notice of such modifications. Unless Developer rejects any modified term in writing within five business days of receipt of notice of such, Developer will be deemed to have accepted the modified terms. If Developer rejects or cannot comply with any proposed change, then Developer must immediately cease accessing the Veriplace Platform and all rights and licenses granted to Developer under these TOS will be terminated immediately.

4.3 Usage Data and End Users. WaveMarket records information, including without limitation, the URL, IP address, browser type, access times and dates when Developer Applications call the Veriplace Platform. WaveMarket owns such record logs and may use this information to promote, operate and improve WaveMarket services, applications and platforms or otherwise.

4.4 Audit. Developer will provide any information related to an Approved Application reasonably requested by WaveMarket. WaveMarket reserves the right to (a) use any technical and legal remedies available to it to prevent abuses related to the Veriplace Platform; (b) investigate or monitor by any means Developer’s compliance with these TOS; and (c) to perform an audit of Developer’s, or as applicable, its service/providers’/contractors’ systems to investigate compliance with these TOS. Developer will grant WaveMarket full and complete access, during normal business hours, to Developer’s facilities, books, records, procedures and information that relates to such audit. These audit rights supplement and do not limit WaveMarket’s other rights herein.

5. Ownership Rights.

5.1 WaveMarket IP and Data. WaveMarket will retain all Intellectual Property Rights in Veriplace Platform and/or any other WaveMarket intellectual property provided hereunder (“WaveMarket Property”). Developer acknowledges and agrees that it obtains no intellectual property rights or licenses by this TOS, except for those licenses expressly granted herein. WaveMarket reserves all rights not expressly granted pursuant to these TOS. WaveMarket records information, including without limitation, the URL, IP address, browser type, access times and dates when Developer Applications call the Veriplace Platform. WaveMarket owns such record logs and may use this information to promote, operate and improve WaveMarket services, applications and platforms or otherwise.

5.2 Developer’s IP. Subject to rights and licenses set forth herein, Developer retains all rights, title and interest in and to any Developer Applications, Developer Data and Developer Marks.

5.3 Restrictions on IP. Except as expressly permitted by applicable law and these TOS, neither party will (or will permit any third party to: (a) decompile, reverse engineer, disassemble or otherwise attempt to derive the source code of any software of the other party; (b) adapt, modify or create derivative works based on any materials or technology of the other party; (c) develop methods to enable unauthorized parties to access or use any services, networks or systems of the other party; or (d) remove any accurate identification, copyright or other proprietary notices from any materials or technology of the other party or its licensors/suppliers. Except as expressly permitted herein, Developer will not and/or will not permit any third party to use, modify, sublicense, distribute, lease, resell or otherwise transfer access to the Veriplace Platform, in whole or part.

6. Fees.

6.1 Developer Fees. Developer will pay to WaveMarket the Test Fees set forth below and applicable fees set forth in the Pricing Schedule and/or any other attachment to these TOS, which are hereby incorporated by reference (collectively “Developer Fees”). WaveMarket reserves the right to modify or add new Developer Fees by providing notice forty-five days prior to such modified or new fees taking effect. Developer Fees are exclusive of taxes or similar fees now in force or enacted in the future or imposed, all of which Developer will be responsible for and will pay for directly or reimburse WaveMarket in full, including but not limited to, sales, usage, excise, value-added, ad-valorem, property or any other taxes, surcharges or regulatory/governmental fees (“Other Fees” and collectively with Developer Fees will be referred to as “Fees”), except for taxes based upon WaveMarket’s net income.

6.2 Test Fees. Test Fees for live location requests are (a) $0.07 per each Zoom Mode request submitted to Veriplace and to which a response is sent; and (b) $0.035 for any Area Mode request submitted to Veriplace and to which a response is sent. For clarity, WaveMarket does not impose a Test Fee if (i) Veriplace sends an error message in response to a query from a Developer Application; or (b) Developer requests simulated location data.

6.3 Payment Terms. Developer will pay Fees in United States dollars. Unless expressly permitted otherwise, Developer will pay Fees in advance. WaveMarket reserves the right to suspend Developer’s access to the Veriplace Platform should Developer fail to maintain a positive balance of pre-paid Fees. In the event that WaveMarket initiates collection proceedings for amounts due, Developer will be liable for all collection and other costs incurred by WaveMarket, including but not limited to, reasonable attorneys' fees whether or not litigation is commenced. All Fees paid hereunder are non-refundable. WaveMarket, in its sole discretion, may invoice Developer for Fees in arrears and Developer will pay such invoices within 30 days from the date of the invoice. Any Fees not timely paid are subject to interest from the due date until paid at 1 ½% per month or the highest rate permitted by applicable law.

7. Confidential Information.

7.1 Definition of Confidential Information. During the Term and for a period of five years after termination or as defined by applicable law, each Party (“Receiving Party”) will have access to and become acquainted with various non-public, proprietary intellectual property and confidential information of the other party (“Disclosing Party”) (“Confidential Information”), which in the case of WaveMarket, includes without limitation, information concerning any wireless carrier or any other WaveMarket customer trialing the Veriplace Platform or considering launching the Veriplace Platform or characteristics of the Veriplace Platform (such as programming, features, reports and content). End User Data will be Confidential Information disclosed by WaveMarket, provided however, Developer may disclose End User Data for a given End User as expressly provided herein. Confidential Information disclosed under this Agreement may be disclosed in writing or other tangible form or by oral disclosure. Unless defined as an exception in Section 7.3, any Fees imposed herein will be deemed WaveMarket Confidential Information.

7.2 Use and Storage of Confidential Information. Developer will keep the Confidential Information strictly confidential and will not disclose or permit any other person or entity access to the Confidential Information, provided that Developer may disclose Confidential Information to its authorized employees who have a need to know solely for purposes of Developer fulfilling its obligations herein and as expressly permitted herein. Developer will ensure that all such authorized employees are provided and comply with the confidentiality and nondisclosure obligations set forth herein. Developer will not use any Confidential Information to compete with or obtain a commercial advantage over WaveMarket.

7.3 Exceptions. Information will not be deemed Confidential Information under this Agreement if it is (a) known to the Receiving Party prior to its receipt from the Disclosing Party from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) to have become publicly known, except through a breach of this Agreement by the Receiving Party; (c) to have been entirely independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party; (d) any information concerning any Developer Application that WaveMarket makes available to a wireless carrier as contemplated by these TOS; or (e) any information concerning any Developer Application that a third party may obtain when accessing the Veriplace Platform or participating in public forums related to Veriplace. If legally obligated to do so, the Receiving Party may disclose Confidential Information pursuant to the requirements of a governmental agency or applicable law, provided that it gives the Disclosing Party reasonable prior written notice sufficient to permit the Disclosing Party to contest such disclosure or provide for confidential treatment of such Confidential Information and uses reasonable efforts to disclose such in a confidential manner.

8. Term, Termination and Suspension.

8.1 Term. These TOS will continue to apply until terminated by WaveMarket or Developer as set forth herein (“Term”).

8.2 Termination by Developer. Developer may terminate these TOS by providing notice to WaveMarket.

8.3 Termination by WaveMarket. Without limiting its rights herein (including without limitation, its right to suspend), WaveMarket may terminate (a) these TOS immediately upon written notification if Developer commits a breach of the TOS which is not remedied within ten (10) days of receipt of written notification of such breach; (b) any Approved Application for a wireless carrier if WaveMarket’s agreement with such carrier expires or otherwise terminates; or (c) any Approved Application in conjunction with a wireless carrier’s requirements.

8.4 Suspension by WaveMarket. WaveMarket may suspend, remove, block, delete or disable access to the Veriplace Platform with respect to Developer or any End User, with or without notice, if WaveMarket determines, in its sole discretion, that any Developer Application may or does not comply with these TOS. Any such suspension will continue only for as long as reasonably necessary to remedy the breach (to the extent the breach may be remedied) and WaveMarket will promptly re-initiate access to the Veriplace Platform thereafter. To the extent that Developer cannot or does not remedy the breach, WaveMarket may terminate these TOS by providing written notice.

8.5 Effect of Termination. Upon termination of these TOS, (a) Developer will immediately cease accessing the Veriplace Platform and cease use of any WaveMarket Property, including WaveMarket Confidential Information; (b) all licenses and rights granted under these TOS will terminate immediately; (c) any and all payment obligations under these TOS will become due immediately; and (d) Developer will immediately and permanently destroy any End User Data in its possession. Unless notified in writing otherwise, Developer will delete all copies of WaveMarket Confidential Information in its possession. Termination of these TOS subject to the terms and conditions herein is without prejudice to any other right or remedy of the Parties.

9. Developer’s Representations And Warranties. Developer represents and warrants it has full legal authority to enter into these TOS and Developer owns and/or has obtained the necessary legal rights to provide the Developer Application, including without limitation any content contained in or obtained by Developer Applications. Developer will comply with all applicable laws, rules, regulations and guidelines, including without limitation, consumer protection, data security, privacy and customer proprietary network information, and/or export control, as well as any wireless carriers’ policies or guidelines applicable to Approved Applications. To the extent Developer charges a fee for any Developer Application, it will comply with applicable rules of any payment network or association (i.e. Payment Card Industry rules and standards).

10. DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WAVEMARKET PROVIDES THE VERIPLACE PLATFORM, ANY OTHER WAVEMARKET PROPERTY AND THE CONFIDENTIAL INFORMATION ON AN “AS IS” BASIS WITH ALL FAULTS, ERRORS AND DEFECTS. WAVEMARKET DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THERE IS NO WARRANTY OF QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR AUTHORITY WITH RESPECT TO ANY INFORMATION, MATERIALS, SOFTWARE, TECHNOLOGY, AND SERVICES PROVIDED HEREUNDER. DEVELOPER USES AND ACCESSES THE VERIPLACE PLATFORM AT ITS SOLE RISK AND WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM USE OF VERIPLACE.

NEITHER WAVEMARKET NOR ANY WIRELESS CARRIER MAKES ANY REPRESENTATIONS OR WARRANTIES CONCERNING THE SECURITY, RELIABILITY OR AVAILABILITY OF ANY WIRELESS CARRIER'S NETWORK, RESPECTIVELY, INCLUDING BUT NOT LIMITED TO NETWORK AND COVERAGE AVAILABILITY. WAVEMARKET HAS NO CONTROL OVER THE INTERNET OR ANY OTHER NETWORK TO WHICH THE VERIPLACE PLATFORM MAY BE CONNECTED, DIRECTLY OR INDIRECTLY, AND THEREFORE, WAVEMARKET CANNOT MAKE AND DISCLAIMERS ANY WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO SUCH NETWORKS, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

NOTHING CONTAINED IN THESE TOS WILL CONSTITUTE OR BE CONSTRUED AS ANY REPRESENTATION OR WARRANTY BY WAVEMARKET THAT THE VERIPLACE PLATFORM, ANY WAVEMARKET PROPERTY OR ANY NETWORK THAT WAVEMARKET MAY BE CONNECTED TO, DIRECTLY OR INDIRECTLY OR ANY DATA THAT DEVELOPER MAY OBTAIN FROM VERIPLACE OR DERIVED FROM A WIRELESS CARRIER’S NETWORK, RESPECTIVELY, INCLUDING WITHOUT LIMITATION, LOCATION INFORMATION (A) WILL BE AVAILABLE, UNINTERRUPTED, TIMELY OR ERROR-FREE; (B) WILL MEET DEVELOPER’S REQUIREMENTS; OR (C) WILL INCLUDE DATA THAT IS ACCURATE, COMPLETE AND/OR RELIABLE.

THE FOREGOING LIMITATIONS, EXCLUSIONS AND LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

11. LIMITATION OF LIABILITY.

11.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WAVEMARKET, ITS AFFILIATED COMPANIES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, DISTRIBUTORS, LICENSORS, SUPPLIERS OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THESE TOS OR THE USE OF OR INABILITY TO USE THE VERIPLACE PLATFORM, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION.

IN ADDITION, THE MAXIMUM AGGREGATE LIABILITY OF WAVEMARKET, ITS AFFILIATED COMPANIES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, DISTRIBUTORS, LICENSORS, SUPPLIERS OR AGENTS FOR ANY CLAIMS ARISING IN CONNECTION WITH THESE TOS WILL NOT EXCEED THE LESSER OF $1,000.00 OR THE TOTAL AMOUNT OF FEES PAID HEREUNDER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.

11.2 Acknowledgement. The disclaimer of warranties and limitation of damages set forth above are essential elements of the basis of the bargain between WaveMarket and Developer. The terms herein reflect the parties due regard for any business risk. NOTWITHSTANDING THE FOREGOING, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE IN THOSE JURISDICTIONS.

12. Indemnification.

12.1 Indemnification. Developer will defend, indemnify and hold WaveMarket, its Affiliates, its Suppliers and their respective officers, directors, employees, agents (each an “Indemnified Party”) harmless from any and all claims, demands, causes of action, judgments, penalties, interest costs and expenses, liabilities, losses or damages of any kind, including reasonable legal fees and settlement costs, arising from third party claims arising out of or in connection with (a) Developer’s breach of these TOS, including any representations, warranties or covenants; (b) Developer Applications and any acts, omissions, services content, materials or intellectual property related to such; (c) any fraudulent misrepresentation, negligence or willful misconduct by Developer; (d) any Developer Application allegedly or actually infringing (either alone or in combination with elements not provided by Developer) or misappropriating, as applicable, any third party’s intellectual property rights; (e) personal injury, death or property damage arising out of an End User’s use of the Developer Application.

12.2 Indemnification Process. The Indemnified Party will give prompt written notice of any indemnified claim. Unless the parties expressly agree otherwise in writing, the Indemnified Party will allow the indemnifying party the sole control of the defense and related settlement negotiations for such claim, provided however, (a) the Indemnified Party will have the right to approve or disapprove any settlement or compromise, which approval will not be unreasonably withheld or delayed; and (b) the Indemnified Party will have the right to approve the attorneys that the indemnifying party will retain for any claim. The Indemnified Party will assist and cooperate in the defense and settlement negotiations as requested by the indemnifying party so long as the indemnifying party pays the Indemnified Party’s costs and expenses associated with such assistance and cooperation.

If the indemnifying party fails to (c) notify the Indemnified Party of the indemnifying party's intent to take any action within fifteen (15) days after receipt of a notice of a claim; or (d) proceed in good faith with the prompt resolution of the claim, the Indemnified Party, with prior written notice to the indemnifying party and without waiving any rights to indemnification and reimbursement of reasonable legal fees and costs, may defend or settle the claim without the prior written consent of the indemnifying party. The indemnifying party will reimburse the Indemnified Party on demand for all damages incurred by the Indemnified Party in defending or settling the claim.

13. Suppliers. For purposes of Sections 10, 11 and 12, “Suppliers” will include any third party advertiser, wireless carrier (such as AT&T Wireless), technology provider and/or service provider that WaveMarket utilizes in conjunction with Veriplace. Suppliers are intended third-party beneficiaries of these sections and as such will be entitled to directly enforce their rights hereunder.

14. Electronic Notices. DEVELOPER AGREES TO TRANSACT WITH WAVEMARKET ELECTRONICALLY. WAVEMARKET MAY PROVIDE NOTICES TO DEVELOPER ELECTRONICALLY (a) VIA VERIPLACE ANNOUNCEMENT LIST; OR (b) BY POSTING THE NOTICE ON THE VERIPLACE DEVELOPER SITE. Receipt of any such notice is the day that the notice is sent or posted by WaveMarket. Developer will provide notice to WaveMarket at the following address contact@veriplace.com.

15. Dispute Resolution.

(a) Governing Law and Arbitration. These TOS will be governed and construed in accordance with the laws of the State of California, exclusive of its provisions on conflicts of laws. The parties will promptly attempt to resolve any issue, dispute or controversy arising out of or relating to this Agreement among themselves. Any dispute arising out of or relating to these TOS which is not resolved by the Parties will be resolved by final and binding arbitration conducted in Alameda County, California under the then current Commercial Dispute Resolution of the American Arbitration Association ("AAA"); provided however, either party retains the right to apply to any court of competent jurisdiction worldwide to protect and enforce its intellectual property and other rights. The arbitration will be conducted by one arbitrator who is knowledgeable in the subject matter which is at issue in the dispute and who is selected by mutual agreement of the Parties or, failing such agreement, will be selected according to the AAA rules. The arbitrator will be able to decree any and all relief of an equitable nature, including but not limited to such relief as a temporary restraining order, a preliminary injunction, a permanent injunction, or replevin of property. The arbitrator will be able to award damages only if consistent with the terms herein. The parties will share equally the arbitrator's fees and expenses pending the resolution of the arbitration unless the arbitrator, pursuant to its right but not its obligation, requires the non-prevailing party to bear all or any portion of the costs of the prevailing party including but not limited to its attorneys’ fees. The decision of the arbitrator will be final and may be sued on or enforced by the party in whose favor it runs in any court of competent jurisdiction at the option of such party. The parties will have such discovery rights as the arbitrator may allow.

(b) Injunctive Relief. Notwithstanding the parties’ agreement to resolve dispute by binding arbitration, Developer’s breach or threatened breach of the following sections, Privacy, End User Consent, Data Storage, Content Requirements, Authorized Use, Approved Application, Modification to Approved Applications, Developer Marketing Approved Applications and Press Releases, Proprietary Rights and Confidential Information or any related breach may cause WaveMarket irreparable damage for which recovery of money damages would be inadequate and that WaveMarket, therefore, may obtain timely injunctive relief to protect its rights under these TOS in addition to any and all other remedies available at law or in equity.

(c) Enforcement and Attorney’s Fees. The provisions of this Section 14 may be enforced by any court of competent jurisdiction, and the party seeking enforcement will be entitled to an award of all costs, fees and expenses, including attorney’s fees, to be paid by the party against whom enforcement is ordered.

16. Miscellaneous.

16.1 Relationship of Parties. Nothing in these TOS will be construed as creating a partnership or joint venture or partnership of any kind between the parties and neither party will have the authority or power to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose. The parties do not contemplate any joint development of applications or intellectual property hereunder. Except as expressly set forth or referred to in this Agreement, nothing in this Agreement is intended or will be construed to confer upon or give to any party other than the Parties to this Agreement, their successors and permitted assigns, if any, any rights or remedies under or by reason of this Agreement.

16.2 Assignment. Developer may not assign these TOS or delegate its responsibilities or obligations herein, in whole or in part, without the prior written consent of WaveMarket.

16.3 Severability. If any provision of these TOS is held to be invalid, illegal or unenforceable for any reason or in any respect whatsoever, such invalidity, illegality or unenforce¬ability will not affect any other provisions of these TOS, and these TOS will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

16.4 No Waiver. The waiver by any party hereto of any breach or default will not constitute a waiver of any different or subsequent breach or default. No waiver to these TOS will be effective unless stated in writing and signed by author¬ized representa¬tives of both Parties.

16.5 Entire Agreement. These TOS, including the recitals, exhibits and any documents incorporated by reference or to be incorporated by reference hereto, constitute the entire agreement, understanding and representations, expressed or implied, between the parties with respect to subject matter described herein, and supersedes all prior or contemporaneous written and oral communications, agreements, representations, warranties, statements, negotiations, understandings and proposals, with respect to such subject matter. These TOS may only be modified as expressly set forth herein.

16.6 Survival. Section 1 (Definitions), Section 2.4 (Developer Applications and End User Agreements), Section 3.6 (Developer Data), Section 4.4 (Audit), Section 5 (Proprietary Rights), Section 7 (Confidential Information), Section 8.5 (Effect of Termination), Section 9 (Developer’s Representations and Warranties), Section 10 (Disclaimer), Section 11 (Limitation of Liability), Section 12 (Indemnification), Section 13 (Suppliers), Section 15 (Dispute Resolution), Section 16 (Miscellaneous) and any other section or document incorporated by reference intended to survive will survive the termination of these TOS.