Veriplace End User License Agreement
Last Updated May 18, 2010
You are entering into a legally binding agreement with WaveMarket, Inc.
These terms and conditions comprise a legally binding agreement between You and WaveMarket, Inc. ("Agreement") and You must accept these terms and conditions as presented to use the Veriplace service ("Veriplace" or "Service").
Veriplace provides a variety of location privacy controls to assist You in managing Your privacy preferences and with the release of Your location information to applications that You obtain from other providers.
PLEASE BE AWARE THAT WAVEMARKET RESERVES THE RIGHT TO MODIFY THE SERVICE AND/OR AGREEMENT AT ANY TIME AND TO SUSPEND AND/OR TERMINATE THE SERVICE AND/OR AGREEMENT AT ANY TIME.
WAVEMARKET PROVIDES THE SERVICE ON THE CONDITION THAT YOU ACCEPT THE AGREEMENT AS PRESENTED.
PLEASE CAREFULLY READ THE TERMS AND CONDITIONS BELOW.
BY CLICKING ON THE "I ACCEPT" BUTTON, YOU WILL ENTER INTO THE AGREEMENT WITH WAVEMARKET, INC. AND BE BOUND BY ITS TERMS AND CONDITIONS PRESENTED BELOW WITHOUT CHANGE AND YOU CONSENT TO HAVE THIS AGREEMENT PROVIDED TO YOU IN ELECTRONIC FORM.
1. 1. Your Subscription and Your Obligations With Veriplace
1.1 Use of Veriplace. You expressly consent to and grant WaveMarket the right to collect and disclose (a) the location of Your mobile device(s) ("Location Information") to applications that You identify. You should NOT utilize applications that You do not trust. Once Veriplace discloses the location of Your mobile device, then Your relationship with such third parties (and NOT this Agreement) describes how those parties may utilize Your Location Information. You may modify certain aspects of Your Veriplace account with respect to when Your mobile device may be located and by which applications via the options provided at http://www.veriplace.com.
VERIPLACE IS FOR YOUR PERSONAL USE AND SHOULD NOT BE USED FOR OR RELIED ON FOR EMERGENCY LOCATION OR SAFETY PURPOSES OR UNDER CIRCUMSTANCES REQUIRING GUARANTEED RESULTS. YOU AGREE NOT TO USE VERIPLACE WHILE DRIVING A MOTOR VEHICLE.
1.2 License to WaveMarket. Other than information required for registration, You do not have to submit anything to us, but if You choose to submit something, You must grant, and You actually grant by concluding the Agreement, a non-exclusive, irrevocable, perpetual, unlimited, assignable, sublicenseable, royalty-free right and license to use, copy, prepare derivative works of, distribute, publish, reproduce, display, remove, retain and use, in any way now known or in the future discovered, any content that You submit to us in connection with Veriplace, subject to the terms herein. You represent and warrant that information You submit to Veriplace is accurate, not confidential and not in violation of applicable law, agreement or any third party right (including without limitation intellectual property rights, rights of publicity and privacy). WaveMarket exercises no control over the content You submit to Veriplace.
1.3 Payment of Fees and SMS Messages. You are not required to pay WaveMarket any fees to access Veriplace but You may be required to pay fees imposed by the application locating Your mobile device, the provider of applications You subscribe to and/or wireless carrier/Mobile Virtual Network Operator (each a "wireless carrier") fees, including but not limited to, SMS text messages, data and/or WAP services. Such charges will appear on statements that either Your wireless carrier or an application provider(s) sends You. Notwithstanding the foregoing, WaveMarket reserves the right to charge (and thereafter, revise) fees for Veriplace at any time upon providing prior notice to You. If You fail to pay any such charges for Veriplace when due, then WaveMarket reserves the right to pursue any and all legal remedies to collect the amounts owed by You and any other remedy described herein or available under applicable law.
You will receive SMS messages when using Veriplace and the frequency and number of such messages will depend, in part, on your use of Veriplace and other applications. Msg&Data rates may apply and if applicable will appear on the statement that Your wireless carrier sends You. You may opt out of receiving most SMS messages via Veriplace by (i) texting "STOP" to 222777; or (ii) designating this preference in Your Veriplace account. For help, you may text HELP to 222777.
1.4 You Represent To Us. By using Veriplace, You represent and warrant that (a) You will use the Service only for Your personal, non-commercial use and for lawful purposes in the United States; (b) if You are a parent or guardian entering into this Agreement for the benefit of a minor (i.e. a person that cannot legally enter into binding contracts), then You accept full responsibility for any such minor's (i) use of Veriplace; (ii) compliance with this Agreement; and (iii) any financial charges and/or legal liability he or she may incur; (c) You are not a minor (i.e. not under the age of 18; and if a resident of Alabama or Nebraska, not under the age of 19 and if a resident of Mississippi, not under the age of 21); (d) have not previously been suspended or removed from using Veriplace or any other WaveMarket service.
1.5 Keep Your Account And Password Secure. Veriplace requires You to establish a password for Your account. Keep Your account password confidential, do not use others' accounts and do not let others use Your account. You will be responsible for anything that happens through Your account until Your account is closed or You prove that Your account security was compromised due to a fault of our systems. You must notify us immediately if Your password is no longer confidential by sending an email to email@example.com.
1.7 Limitations of Service and Accuracy of Data. You expressly agree that (a) based on preferences you specify in Your Veriplace account, Veriplace provides an approximate location of your mobile device and does not guarantee any results, including but not limited to device locations, data, directions, maps, requested locations or messaging; (b) results from Veriplace may not be accurate, timely or reliable; (c) use of Veriplace and any requested Location Information is subject to network capabilities, environmental conditions such as structures, buildings, weather, geography, landscape, and topography, available data, atmospheric conditions and other factors associated with use of satellites and satellite data; (d) Veriplace is subject to Your mobile device being turned on, charged and within Your underlying wireless carrier's coverage area, among other factors; and (e) Veriplace may be limited to mobile devices located in the United States.
1.8 Support for Veriplace. For HELP with Veriplace, You should first review the FAQs at http://veriplace.com/help. If You still require support, You may (a) log in your account via the Internet from either Your computer or mobile device and click on the "Help" link; (b) send an email to firstname.lastname@example.org.
1.9 Use and Restrictions. You will comply with all applicable laws when using Veriplace. You will comply with any terms, rules and/or policies that may be incorporated into this Agreement, as well as Your agreements with Your wireless carrier and other third parties. You will be responsible for any costs and expenses incurred by WaveMarket (including attorneys' fees) as a result of such misuse or use.
This Agreement prohibits and You will not or permit others to (a) use the Service in a manner inconsistent with or in violation of this Agreement; (b) reverse engineer, decompile, disassemble or otherwise attempt to extract, generate or retrieve source code from any compiled binary provided in any software program underlying the Service ("Programs"), in whole or part, except as expressly permitted by mandatory law; (c) modify, translate, adapt, arrange or create derivative works based on the Programs, in whole or part, for any purpose; (d) export the technology in the Programs in violation of applicable export control laws; (e) attempt to or actually override any security component of or related to the Service; and (f) interfere with, overload, "flood," "crash" or disrupt Veriplace, which may include but is in no way limited to, submitting, in any manner (i.e. manual or automated), an unreasonable number of location requests.
1.10 Indemnify WaveMarket. You will indemnify and defend WaveMarket, Inc., its affiliates, and Suppliers, including all of their respective employees, directors, officers, shareholders, agents and permitted assigns, from any damages, losses, liabilities, costs and expenses (including, but not limited to, reasonable attorneys' fees) related to third party claims, demands, charges or investigations, arising out of or in connection with (a) Your use of the Service, in whole or part, including without limitation Your use or misuse of any location information, addresses, directions or any other data You may obtain while using the Service; (b) Your breach of this Agreement; (c) the use or misuse of location information disclosed to third parties as set forth in your Veriplace account. In no event will You settle any claim without WaveMarket's prior written approval. WaveMarket reserves the right, without waiving any rights to indemnification, including reimbursement of reasonable legal fees and costs, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, without the prior written consent of You. All indemnification obligations will continue in effect even after, and notwithstanding, any expiration or termination of this Agreement.
1.11 Notify Us Of Acts Contrary To The Agreement. If You believe that You are entitled or obligated to act contrary to this Agreement under any mandatory laws, You agree to provide us with detailed, 30 days prior written notice before You act contrary to this Agreement, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation.
2. Scope of Service
2.2 Suspension of Your Access To Veriplace. Without prejudice to any other rights, WaveMarket reserves the right to suspend and/or terminate Your access to Veriplace at any time for any reason, including reasonable suspicion of, or any actual misuse or fraudulent use by You or no reason and without notice to You.
2.3 Veriplace. We may with or without notice - perform maintenance, modify, replace, refuse access to, suspend, limit access or discontinue Veriplace, partially or entirely. If WaveMarket discontinues the Service entirely, it will post a notice on the Service website: http://veriplace.com.
2.4 Wireless Carriers. To use Veriplace, you must have an active account with a wireless carrier. Veriplace is compatible with wireless carriers such as AT&T Mobility, Sprint, T-Mobile for example, provided that availability of Veriplace with any given carrier is subject to change as set forth in this Agreement. At all times, Veriplace relies on and is subject to the wireless services furnished by wireless carriers. For example, Veriplace may not be available, in whole or part, due to capacity and facility constraints, among any others, associated with the wireless carriers' respective networks. You agree that neither WaveMarket nor the wireless carriers will be responsible for any damages associated with such limitations.
2.5 Ownership. Veriplace, including any data, materials, technology, software or other materials that comprise it, are protected by copyright, trade secret and other intellectual property laws and treaties and all title and intellectual property rights in and to Veriplace are owned by and will remain the exclusive property of WaveMarket Inc., its licensors and/or Suppliers. All rights not expressly granted herein are reserved.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WAVEMARKET PROVIDES THE SERVICE 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. YOUR USE AND ACCESS THE SERVICE AT YOUR SOLE RISK AND WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM USE OF THE SERVICE.
NOTHING CONTAINED IN THIS AGREEMENT WILL CONSTITUTE OR BE CONSTRUED AS ANY REPRESENTATION OR WARRANTY BY WAVEMARKET THAT THE SERVICE OR ANY NETWORK THAT WAVEMARKET MAY BE CONNECTED TO, DIRECTLY OR INDIRECTLY OR ANY DATA THAT YOU MAY RECEIVE FROM THE SERVICE 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 YOUR REQUIREMENTS; AND/OR (C) WILL INCLUDE DATA THAT IS ACCURATE, COMPLETE AND/OR RELIABLE.
THE FOREGOING DISCLAIMER OF WARRANTIES IS AN ESSENTIAL ELEMENT OF THE AGREEMENT AND YOU ACKNOWLEDGE AND AGREE THAT WAVEMARKET WOULD NOT BE ABLE TO PROVIDE THE SERVICE ON AN ECONOMIC BASIS WITHOUT SUCH LIMITATIONS.
THE FOREGOING LIMITATIONS, EXCLUSIONS AND LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
IF YOU ARE DISSATISFIED OR HARMED BY VERIPLACE OR ANYTHING RELATED TO IT, YOU MAY CEASE USE OF THE SERVICE AND TERMINATE THE AGREEMENT AS PROVIDED HEREIN.
4. Limitation of Liability
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. IN SUCH CASES, WAVEMARKET'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WAVEMARKET, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR OTHER INJURY, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, ARISING OUT OF OR IN ANY WAY RELATING TO THE SERVICE, INCLUDING THE SERVICE WEBSITE, ANY INFORMATION ANY SOFTWARE ASSOCIATED WITH IT, WHETHER ARISING OUT OF THE USE OF SUCH, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WAVEMARKET, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS OR SUPPLIERS, HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF WAVEMARKET UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING WILL BE LIMITED TO THE GREATER OF (A) THE AGGREGATE AMOUNT ACTUALLY PAID BY YOU TO WAVEMARKET FOR VERIPLACE DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM; OR (B) ONE THOUSAND DOLLARS ($1,000). THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. YOU ACKNOWLEDGE AND AGREE THAT WAVEMARKET WOULD NOT BE ABLE TO PROVIDE THE SERVICE ON AN ECONOMIC BASIS WITHOUT SUCH LIMITATIONS.
5.1 By WaveMarket. We may terminate the Agreement for cause or no cause, at any time, by providing notice, and such termination will be effective immediately or as specified in the notice.
5.2 By You. You may terminate this Agreement at any time by closing Your account via the Veriplace Account Settings webpage.
5.3 Effect of Termination. Upon any termination of Veriplace, WaveMarket will cease providing Veriplace to You and will have no liability to You or any further obligations under this Agreement. Upon termination, You lose access to Veriplace but You will be and remain responsible for fees for any subscriptions, wireless carrier services or that any third party may legally impose, if any.
6. Choice of Law
6.1 California Law. The Agreement and any disputes with us arising out of or relating to the Agreement or WaveMarket will be governed by California law, excluding conflicts of law principles that may provide for the application of the law of another jurisdiction and excluding the UN Conventions on Contracts for the International Sale of Goods. Any action or proceeding arising from or relating to this Agreement will be brought in federal court in the Northern District of California or in state court in Alameda County, California, and each Party irrevocably submits to the jurisdiction and venue of any such court.
7. General Terms.
7.1 Suppliers. For purposes of Agreement, the term "Suppliers" will include any third party advertiser, wireless carrier (such as AT&T), technology provider, distributor, licensor and/or service provider that WaveMarket utilizes in conjunction with the Service.
7.2 Severability. If any provision of the Agreement is found to be invalid or unenforceable under mandatory laws of a particular jurisdiction, such provision will be interpreted as to give maximum effect to its intended purpose and this will not affect the validity or enforceability of (a) such provision under the laws of any other jurisdiction; or (b) any other provision of the Agreement.
7.3 Notices. You consent to receive all communications, including notices, agreements, legally required disclosures or other information in connection with Veriplace (collectively, "Notices") in electronic format. We may notify You via postings on http://www.Veriplace.com, email, SMS text message or otherwise. You will be responsible for any costs associated with any notices sent via SMS text message. If you desire to withdraw your consent to receive notes as stated herein, then you must terminate the Agreement. You may notify us in writing via US Mail (with postage pre-paid and return receipt requested), or by commercial overnight courier sent to the following address: 5858 Horton St., Suite 250, Emeryville, CA 94608, USA, Attn: Legal Department. Any notices that You provide that are not in compliance with this Section will have no legal effect. Notice will be deemed given (a) the third business day after date sent via US Mail, date of delivery by courier (as indicated on the courier's records) or date posted on http://www.veriplace.com; or (b) 24 hours after date sent via email or SMS text message.
7.4 Electronic Access, Electronic Notices, Electronic Signature. By clicking on the "I Accept" button you consent to WaveMarket providing the Agreement in electronic form. YOUR AGREEMENT AND INTENT TO BE BOUND BY AN ELECTRONIC AGREEMENT APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS RELATED TO THE SERVICE, INCLUDING WITHOUT LIMITATION, AMENDMENTS AND NOTICES. To access and retain this electronic Agreement and use the Service, you must have access to the World Wide Web either directly (via computer and modem) or through devices that access web-based content and pay any applicable fees. You may save this Agreement into any word processing program or print it. You have the right to receive the Agreement in non-electronic form and to withdraw your consent to have this Agreement provided to you in electronic form. If you withdraw such consent, WaveMarket will discontinue your access to the Service. To withdraw your consent and/or request a non-electronic copy of this Agreement, send such request to contact <at> veriplace <dot> com.
7.5 Amendments to this Agreement. We reserve the right to modify, supplement or replace the terms of the Agreement. If You do not agree to changes to the Agreement, You will terminate the Agreement within ten days of WaveMarket providing notice of such change by sending a termination notice as provided herein or closing your Veriplace account. You acknowledge and agree that any such amended or modified terms will become effective unless you terminate the Agreement or close your Veriplace account.
7.6 No informal waivers, agreements or representations. Our failure to act with respect to a breach by You or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. Except as expressly and specifically contemplated by the Agreement, no representations, statements, consents, waivers or other acts or omissions by us will be deemed legally binding, unless documented in a physical writing hand signed by a duly appointed officer of WaveMarket, Inc.
7.7 Assignment and Delegation. You may not assign or delegate any rights or obligations under the Agreement and any purported assignment and delegation will be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially. We may also substitute, by way of unilateral novation, effective upon notice to You, WaveMarket Inc. for any third party that assumes our rights and obligations under this Agreement.
7.8 Survival All options, rights and covenants contained herein that are intended to survive will survive the expiration or termination of this Agreement. Any provisions concerning limitations of liability, disclaimers, and indemnification contained herein will survive any expiration or termination of this Agreement.
Time to Bring Claims. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of Veriplace or to the Agreement must be commenced within one (1) year after such claim or cause of action arose or You waive such claim or cause of action.