Waypedia Platform Service General Terms and Conditions
Date of Last Revision: MAY 1, 2015.
PLEASE CAREFULLY READ THE FOLLOWING WAYPEDIA'S PLATFORM SERVICE GENERAL TERMS AND CONDITIONS (THE "TERMS & CONDITIONS") BEFORE USING WAYPEDIA'S PLATFORM SERVICE. BY CLICKING THE "I ACCEPT", "REGISTER" or "LOG IN" BUTTON YOU (EITHER INDIVIDUALLY OR ON BEHALF OF THE ENTITY OR COMPANY THAT YOU DULY REPRESENT) ARE ACCEPTING AND AGREEING TO BE UNCONDITIONALLY BOUND BY THE TERMS & CONDITIONS AND ALL TERMS, POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. YOUR CONTINUED USE OF THE PLATFORM SERVICE SHALL ALSO CONSTITUTE ASSENT TO THE FOREGOING. THE PLATFORM SERVICE IS ONLY AVAILABLE TO INDIVIDUALS WHO ARE AT LEAST 18 YEARS OLD OR TO COMPANIES THAT ARE DULY INCORPORATED AND ARE LEGALLY PERMITTED TO CONDUCT BUSINESS, IF YOU DO NOT COMPLY WITH THE FOREGOING REQUIREMENTS AND/OR DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THE TERMS & CONDITIONS, CEASE ALL USE OF THE WAYPEDIA'S PLATFORM SERVICE.
The terms and conditions set forth herein (hereinafter the "Terms & Conditions" or "Agreement") shall apply on the relationship between Waypedia LLC including its affiliates ("Waypedia") and you ("You") as the developer/owner/operator of a web or mobile application (the "App") regarding Your use of Waypedia's Platform service (the "Service") as further detailed herein.
Waypedia reserves the right to modify and/or change any of the terms and conditions of this Agreement, on a non retroactive basis, at any time and without prior notice, and such changes will become effective upon their publication in the following address: /terms. Waypedia will also update the "last updated date" at the beginning of the Agreement. By continuing to use the Service, You agree to be unconditionally bound by the modified Agreement. If the modified Agreement is not acceptable to You, Your only recourse is to cease using the Service.
2. USE OF THE SERVICE
2.1 In order to access and use the Service You are required to complete the registration process and establish a service account. Upon completion of such registration, You shall be granted user name and password to your own service account (the "Service Account"). By opening the Service Account You hereby agree to be responsible for securing your password and log in procedure details. Your use of the Service with respect to the App shall be regulated through your designated Service Account.
2.2 In order to activate the Service, You are required to follow the technical instructions and requirements detailed in the following address: [https://www.waypedia.com/dashboard [link] as may be amended from to time by Waypedia at its discretion.
2.3 You hereby grant Waypedia the right to use the App logo's, trademarks and App' description as may appear on the applicable application store (i.e. Apple Store, Google Play, etc.) as part of and for the purpose of performing the Service or any present or future promotional campaigns.
3. PAYMENT TERMS
3.1 Making Purchases.
Funding and spending. When you make a purchase using Waypedia Payments, you agree to provide a valid funding instrument to load money into your electronic value balance. When you have successfully completed this funding transaction, we will then transfer that value to the Waypedia's Platform offering the services you wish to purchase.Pay attention to the details of each transaction, because your total price may include fees, all of which you are responsible for funding.
3.2 Android Apps campaign:
Actual servicer purchase. You may only use Waypedia Payments to process a funding transaction for a legitimate, bona fide purchase of a service. You may not use Waypedia Payments to fund a transaction or otherwise transfer electronic value not in conjunction with a purchase.
No Warranties. You acknowledge that the services you may purchase are sold by us, not by other companies. WE MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS OR SERVICES SOLD ON OR THROUGH WAYPEDIA IF YOUR APP NOT FOLLOW OUR GUIDELINES.
We don't guarantee any results more than the specific amount of installs/promotion asked for. We don't guaranteed success to any company, developer or organization by any amount of installs driven to your android applications (or "apps"). You are responsible for the app quality, customer services, app design, general presentation, Google Policies, Reviews made by users and so forth. YOU AGREE THAT YOUR APP IS TAKEN CARE BY YOU OR YOUR DEVELOPERS OR HIRED COMPANY AND THAT WE DON'T HAVE ANY POWER, RIGHTS OR RESPONSABILITY TO MODIFY ANYTHING THAT BELONGS TO YOU OR YOUR COMPANY, DEVELOPERS OR ORGANIZATION. WAYPEDIA CAN (WITH YOUR AUTHORIZATION) SUGGEST CHANGES AND IMPROVEMNET FOR YOUR APP BUT ONLY YOU HAVE THE RESPONSABILITY FOR ANY FUTURE OR PRESENT MODIFICATION.
3.3 Payment Methods:
Funding instruments. We allow you to fund your transactions using credit cards and debit cards or PayPal.
Authority. When you provide a funding instrument to us, you confirm that you are permitted to use that funding instrument. When you fund a transaction, you authorize us (and our designated payment processor) to charge the full amount to the funding instrument you designate for the transaction. You also authorize us to collect and store that funding instrument, along with other related transaction information.
Authorization. If you pay by PayPal, credit or debit card, we may obtain a pre-approval from the issuer of the card for an amount, which may be as high as the full price of your purchase. We will bill your card at the time you load funds for your Waypedia Payments transaction, or shortly thereafter. If you cancel a transaction before completion, this pre-approval may result in those funds not otherwise being immediately available to you.
Failed funding. If You fund a payment by debit card and your load transaction results in an overdraft or other fee from your bank, you alone are responsible for that fee.
Funds. Waypedia's Funds is a payment method for participating apps campaigns and promotion on our platform. The following terms apply to Funds usage:
3.3.1 When you purchase or receive Funds, you do not own those Funds. What you have is a limited right to use the Funds in connection with certain features on Waypedia, such as the purchase of a app campaign and promotion.
3.3.2 Except as otherwise stated, purchases of Funds are non-refundable.
3.3.3 You will not sell Funds to anyone, or transfer them to anyone outside of Waypedia.
3.3.4 We may change the purchase price for Funds at any time, as well as the ways that you can use or transfer Funds. We also reserve the right to stop issuing Funds.
3.3.5 Funds are redeemable for only the monetary current value from us unless we agree otherwise in writing or unless required by law.
3.3.6 Funds are subject to our Abandoned Property provision (See below).
3.3.7 Waypedia has in the past issued a small number of free or promotional Funds to users. We may expire these at any time.
Coupon Codes. Waypedia Coupon Code may be used to increase your electronic value balance ("Balance") on Waypedia. You can then use this Balance on our platform as a payment method. The following terms apply to Balances:
3.3.8 If you enter the Coupon Code at the moment of registration, we will credit the Coupon Code value to your Balance. That Coupon Code is valid only for one user and only provided by Waypedia's Client Manager, Reseller or administrators. Coupon Code is NOT transferable.
3.3.9 All Coupon Code gives you different value such as free installs or lower rates. We cancel or change that value at any time and without any warning.
3.3.10 Waypedia is not a bank, so Coupon Code balances are not deposits and they do not earn interest. Coupon Code balances is not insured by the Federal Deposit Insurance Corporation, the Financial Services Compensation Scheme, or any other entity or insurance scheme, whether governmental or private.
3.3.11 We may change the process to convert Coupon Code into electronic value, or the ways that you can use your resulting Balance, at any time as we deem necessary without prior notice to the full extent permitted by law.
3.3.12 You may not sell your Balance or any portion thereof, nor transfer any portion thereof to anyone outside of Waypedia.
3.3.13 Balances are not redeemable for any sum of money or monetary value from us unless required by law.
3.3.14 Waypedia Coupon Code and Balances don't expire. However, Balances are subject to our Abandoned Property provision (See below).
At-will use. We may revoke your eligibility to use Waypedia Payments at any time at our sole discretion.
Inquiries. By using Waypedia Payments, you acknowledge and agree that we may make any inquiries that we consider necessary, either directly or through third parties, concerning your identity and creditworthiness.
Right to cancel. We may cancel any transaction if we believe the transaction violates these Terms or the Statement of Rights and Responsibilities, or if we believe doing so may prevent financial loss. We may also cancel any electronic value accumulated, transferred, assigned, or sold as a result of fraudulent or illegal behavior.
Payment limitations. In order to prevent financial loss to you or to us, we may place a delay on a payment for a period of time, or limit funding instruments for a transaction, or limit your ability to make a purchase, or deactivate your account.
Sharing of information. In order to prevent financial loss to you or to us, we may contact your funding instrument issuer, law enforcement, or affected third parties (including other users) and share details of any payments you are associated with, if we believe doing so may prevent financial loss or a violation of law.
Abandoned Property. If you leave a Balance unused for the period of time set forth by your state, country, or other governing body in its unclaimed property laws, or if you delete your account and leave a Balance, or if we deactivate your account and you do not meet any conditions necessary to reinstate it within six (6) months, we may process your balance in accordance with our legal obligations, including by submitting funds associated with your Balance to the appropriate governing body as required by law.
3.4 Disputes and Reversals:
Customer assistance. Subject to this full section, we provide various tools in our Waypedia Live Chat Support to assist you in communicating with a third party to resolve a dispute arising from a payment transaction.
No liability for spend transaction. If you enter into a transaction with a third party and have a dispute over the goods or services you purchased, we have no liability for the goods or services underlying the transaction. Our only responsibility is to handle your funding transaction. All funding transactions are final unless required by law. If you order something that becomes unavailable before it can be provided to you, you may request a refund of your funded amount.
Duty to notify us. If you believe that an unauthorized or otherwise problematic transaction has taken place under your account, you agree to notify us immediately, so that we may take action to prevent financial loss. Unless you submit the claim to us within 48 hours after the charge, you will have waived, to the fullest extent permitted by law, all claims against us arising out of or otherwise related to the transaction. This won't be valid if a service has been purchased.
Intervention. We may not intervene in disputes concerning payments that may arise between you and a developer, company or organization that was, is or will be working with you.
Technical difficulties. If you experience a technical failure or interruption of service that causes your funding transaction to fail, you may request that your transaction be completed at a later time.
3.5 Special Provisions Applicable to Advertisers:
Agreement to pay. When You purchase advertising on or through Waypedia, you agree to pay all amounts specified in the order, along with any applicable taxes.
Consent to credit check. Without limiting Section 3 above, your order constitutes your written authorization for us to obtain your personal and/or business credit report from a credit bureau. We may obtain your credit report when you place an order, or at any time thereafter.
Security. You are responsible for maintaining the security of your advertising account, and you understand that you will be charged for any orders placed on or through your advertising account.
Direct debit. If you are making direct debit payments, you agree that we can charge you any amount that falls within the range you agreed to upon signup. We will notify you in advance if any charge will exceed the agreed-upon range.
Cancelation. You can terminate an advertising campaign order at any time through our online portal and we will refund those credit to your Waypedia Funds Balance, but cannot be refunded to your PayPal account, Bank account or Credit and debit card.
Tax liability. It is your responsibility to remit any taxes that apply to your transactions. You agree to indemnify and hold us harmless from and against any claim arising out of your failure to do so.
Delinquent accounts. We only deliver and run advertising campaign for users with enough Funds in their Waypedia balance. All payments are up front and only though your Waypedia Balance. You're are responsible to add enough funds to your account to keep your subscription running is there is any.
3.6 Notices and Amendments to These Terms:
Notice to you. By using the Waypedia Payments service, you agree that we may communicate with you electronically any important information regarding your purchases or your account. We may also provide notices to you by posting them on our website, or by sending them to an email address or street address that you previously provided to us. Website and email notices shall be considered received by you within 24 hours of the time posted or sent; notices by postal mail shall be considered received within three (7) business days of the time sent.
Notice to us. Except as otherwise stated, you must send notices to us relating to Waypedia Payments and these Terms by e-mail to firstname.lastname@example.org
Amendment guidelines. We may update these Payments Terms at any time without notice as we deem necessary to the full extent permitted by law. The Payments Terms in place at the time you confirm a transaction will govern that transaction.
3.7 Customer Complaints:
Please refer to our live chat support on the site or e-mail us at email@example.com
4. ADVERTISEMENT SERVICES FOR USER ACQUISITIONS
4.1 As part of the Service, You can use Waypedia' advertisement platform and become an advertiser of your App. For the foregoing purpose you can create an Advertisement for your App ("App Campaign") using the creative tools provided by Waypedia as further detailed in the Service knowledge Support at the following address: http://x.waypedia.com/support.pdf (the "Knowledge Support").
4.2 The terms of each App Campaign shall be mutually agreed by the parties hereto.
4.3. As a precondition for the upload of an App Campaign into Waypedia's advertising platform you are required to advance a budget for the Campaign from "Add funds" or at the end of the campaign creation.
4.4. Any unused balance of an Advance Payment under a specific App Campaign is credited on your account and can be used for additional App Campaigns, provided however that any outstanding credit on account of an Advance Payment that is not used within a period of six (6) months shall be deemed cancelled.
4.5 You acknowledge that publishers have a defined policy and judgment regarding the kind of content and advertisement that may be presented in their websites or social/web/mobile applications (" Site(s)"), and therefore Waypedia hereby retains the right, at its sole and exclusive discretion, and for any reason, to decline, reject or remove any App Campaigns submitted to Waypedia, from time to time, even if it was already placed in a certain Site(s). Provided however that Waypedia right shall be limited to the removal of the entire Campaign from the applicable Site.
5. SHARING YOUR CONTENT AND INFORMATION.
You own all or have the permissions of the content and information you advertise on Waypedia.
For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Waypedia (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
When you use an application (yours or from other developers, companies, etc.) to promote it on our site, the application must ask for permission to access user's content and information as well as content and information that others have shared with you. We require applications to respect our user's privacy, and your agreement with that application will control how the application can use, store, and transfer that content and information. Keep it always transparent and easy to understand for everybody.
When you publish an android application, it means that you are allowing everyone, including people off of Waypedia, to access and use that information, and to associate it with you (i.e., your name and profile picture) in order to promote it in our networks and/or platforms.
6. SPECIAL PROVISIONS APPLICABLE TO ADVERTISERS
You can target your desired audience by buying ads on Waypedia
or our publisher network. The following additional terms apply
to you if you place an order through our online advertising
When you place a Campaign, you will tell us the type of advertising you want to buy, the amount you want to spend, and your type of promotion. Campaign will be running automatically and we will deliver your ads as inventory becomes available. When serving your ad, we do our best to deliver the ads to the audience you specify, although we cannot guarantee in every instance that your ad will reach its intended target.
In instances where we believe doing so will enhance the effectiveness of your advertising campaign, we may broaden the targeting criteria you specify.
You will pay for your Campaign in accordance with our Payments Terms. The amount of installs, clicks and impressions will be calculated based on our tracking mechanisms.
Your ads will comply with our Advertising Guidelines.
You will determine the amount of installs you want to drive, type of promotion, type of retention and target users.
We do not guarantee ANY other activity than the incentivized installs (or organic) that your ads will receive, such as the number of clicks your ads will get, reviews, retention, usage that user might do with your app, uninstalls, ratings, shares and other any activity post installation.
We cannot control how clicks are generated on your ads. We have systems that attempt to detect and filter certain click activity, but we are not responsible for click fraud, technological issues, or other potentially invalid click activity that may affect the cost of running ads.
You can terminate your Order at any time through our online portal, but it may take up to 24 hours before the ad stops running. We might cover those extra costs using your Waypedia Balance.
Our license to run your ad will end when we have completed your Campaign. You understand, however, that if users have interacted with your ad, your ad may remain until the users delete it.
We can use your ads and related content and information for marketing or promotional purposes.
You will not issue any press release or make public statements about your relationship with Waypedia without our prior written permission.
We may reject or remove any ad for any reason.
If you are placing ads on someone else's behalf, you must have permission to place those ads, including the following:
You warrant that you have the legal authority to bind the advertiser to this Statement.
You agree that if the advertiser you represent violates this Statement, we may hold you responsible for that violation.
7. REPRESENTATIONS AND WARRANTIES
7.1. Each party hereby represents and warrants to the other party that: (i) it has the full right, power and authority to enter into this Agreement and perform its obligations hereunder; (ii) this Agreement is a valid and binding obligation of such party; and (iii) it has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder.
7.2. In addition, You hereby represent, undertake and warrant that:
7.2.1. the App, activities performed through the App, any content displayed therein and the App Campaign:
188.8.131.52. shall not include (i) pornography; (ii) Gambling; (iii) copyright infringements and/or (iv) any other illegal, objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services or activities) or link to any of the foregoing;
184.108.40.206. shall comply with all applicable international, federal, and state laws, rules and regulations, inter alia, any publicity or privacy laws, data protection laws, false advertising laws, propriety laws, intellectual property laws and all laws and regulations that may apply to Internet advertising, including, but not limited to the Children's Online Privacy Protection Act, the Can-Spam Act of 2003, the Federal Trade Commission Act and the Digital Millennium Copyright Act;
7.2.2. You shall not generate Qualified Transactions through automated, deceptive, fraudulent or other invalid means, including but not limited to, repeated manual clicks, use of robots or other automated tools or authorize or encourage or allow third party to do so.
7.2.3. Any information You provide to Waypedia as part of the registration processes or in general are true and accurate.
7.3. Without derogating from the above, If You run your App on/through Facebook Platform, You hereby represent and warrant that You strictly comply and shall strictly comply during the Term with all applicable Facebook rules, polices, programs and guidelines for developers, as may be amended by Facebook from time to time, inter alia: (i) Facebook Platform Polices set forth at [http://developers.facebook.com/policy [link]; (ii) Facebook policies regarding the transfer and/or use of any data received from Facebook, including through use of the Facebook Platform (API, Social Plugins, etc.), whether aggregate, anonymous or derivative data and including user data or Facebook User IDs (the "Facebook Data"). Any Facebook Data (i.e. Unique User ID's) that is transferred to Waypedia by You must be encrypted/hashed according to Facebook requirements; and (iii) Facebook Polices Regarding methods for rewarding users with virtual currency or virtual goods as set forth [http://www.facebook.com/help/212590022095343 [link]. Waypedia does not warrant that the Service and its platform complies with the foregoing polices in Section 6.3 and shall have no responsibility for Your compliance with the foregoing polices.
7.4. Without derogating from the above, If You run your App on/through Google Platform, You hereby represent and warrant that You strictly comply and shall strictly comply during the Term with all applicable Google rules, polices and guidelines, as may be amended by Google from time to time, inter alia, Google Platform Polices set forth at [http://developer.android.com/legal.html [link], including without limitations, developer program, content, advertising, distribution through Google Play, data use policies and policies regarding the rewarding of users with virtual currency or virtual goods or in app purchases. Waypedia does not warrant that the Service and its platform complies with the foregoing polices and shall have no responsibility for Your compliance with the foregoing polices.
7.5. Without derogating from the above, If You run your App on/through Apple Platform, You hereby represent and warrant that You strictly comply and shall strictly comply during the Term with all applicable Apple's rules, polices, programs and guidelines, as may be amended by Apple from time to time, inter alia, Apple's developer program policy and license, content policies, advertising policies, distribution through Apple store policies, data use policies and policies regarding the rewarding of users with virtual currency or virtual goods or In App purchases. Waypedia does not warrant that the Service and its platform complies with the foregoing polices and shall have no responsibility for Your compliance with the foregoing polices.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED "AS IS". WAYPEDIA DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT. WAYPEDIA MAKES NO WARRANTY REGARDING THE ADVERTISEMENTS, INCLUDING IN TERMS OF QUALITY, LEGALITY AND NON INFRINGEMENT, AND SHALL HAVE NO LIABILITY REGARDING PRODUCTS/SERVICE SOLD AND/OR PROMOTED THROUGH SUCH ADVERTISEMENTS. WAYPEDIA MAKES NO WARRANTY THAT THE SERVICE AND ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. WAYPEDIA DOES NOT MAKE, AND THIS AGREEMENT DOES NOT PASS TO YOU IN ANY WAY, ANY REPRESENTATION, WARRANTY OR UNDERTAKING ON BEHALF OF ITS SUPPLIERS OR LICENSORS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
8. PROPRIETARY RIGHTS
As between the Parties: (i) Waypedia and its licensors (if any) retain all rights, title and interest, including Intellectual Property Rights in and to, any and all components of Waypedia Service, including without limitations Waypedia Reporting & Tracking Platform, advertisement platform and Waypedia's Confidential Information, the Campaigns (other than App Campaigns) (including any content placed in the Advertisement), and all modifications, enhancements, improvements, and/or derivatives to any of the foregoing. All rights in and to the foregoing not expressly granted hereunder are reserved to Waypedia and its licensors (if any); and (ii) You and your licensors (if any) retain all rights, title, and interest, including Intellectual Property Rights in and to, any and all components of the App (including its content), the App Campaigns and your Confidential Information, and all modifications, enhancements, improvements, and/or derivatives to any of the foregoing; all rights in and to the foregoing subsection (ii) which are not expressly granted hereunder are reserved to you and your licensors (if any). Waypedia hereby provides you with a limited, non-exclusive, non-sub licensable, non-transferable, royalty free worldwide right, under its Intellectual Property Rights and the licenses provided to it by third parties, only during the Term of this Agreement, to display the Advertisement on the App solely according to the terms of this Agreement. "Intellectual Property Rights" shall mean, any and all intellectual property rights, whether registerable or not, in any jurisdiction worldwide inter alia, patents and trademarks (including applications), copyrights (including moral rights), domain names, trade secrets, know-how and Confidential Information.
A party (the "Receiving Party") may use the other party's Confidential Information (the "Disclosing Party") only as necessary to exercise rights and perform obligations under the Agreement. Receiving Party shall not disclose the Confidential Information of the Disclosing Party to any third party without its written consent. Receiving Party will protect Disclosing Party's Confidential Information from disclosure or misuse by using the same degree of care as for Receiving Party's own Confidential Information of like importance, but will at least use reasonable care. Each Party agrees to restrict access to the Confidential Information to those of its officers, directors and employees (including of its related bodies corporate), independent contractors or service providers it retains (collectively "Employees"), who have a "need to know", have been instructed as to the confidential nature of such information and are bound by written confidentiality obligations at least as stringent and onerous as the obligations imposed on the parties hereto. A Party hereto shall be liable to the other in the event that any of its Employees breach these obligations. However, Confidential Information shall not include any information that Receiving Party can demonstrate is: (i) known by the Receiving Party (without breach of any confidentiality obligation by any third party) prior to disclosure by the Disclosing Party; (ii) independently developed by the Receiving Party without the use of or reference to any Confidential Information; (iii) legally received by the Receiving Party (without breach of any confidentiality obligation by any third party) from a third party that is not under a confidentiality obligation to the Disclosing Party; or (iv) publicly available through no breach of this Agreement by Receiving Party. "Confidential Information" means all non-public information whether disclosed orally, in writing or in any other manner, in any form and in any media, including without limitation, any and all financial, technical, business information relating to the either party, information related to clients, methods, ideas, concepts, software, trade secrets or other intellectual property rights, formulations, data, know how, designs, inventions, discoveries, processes and any sales, financial, contractual and marketing information and any information of a confidential nature concerning products or services of the parties.
10.1. You (the "Indemnitor") will indemnify, defend and hold Waypedia and/or Waypedia' officers, directors and employees (the "Indemnified Party") harmless, at your own expense, against any claims, actions, damages and costs (including but not limited to reasonable attorneys' fees and costs) finally awarded by a court of competent jurisdiction or as part of a settlement for the benefit of a third party, arising out of or based upon: (i) a third party claim that the App and/or App Campaign and any content therein infringe Intellectual Property rights of third parties; (all referred to herein as (the "Infringing Property"); or (ii) your breach of any representation or warranty set forth herein, (collectively, the "Claim").
10.2. In the event a Claim is brought against an Indemnified Party, such Indemnified Party shall give the Indemnitor as soon as reasonably possible written notice of such Claim. The Indemnitor shall have the right, at its own expense, to participate in or assume the defense of such Claim. The Indemnified Party shall assist the Indemnitor in the defense of such Claim. Either party may not adjust, settle or compromise any Claim brought against the Indemnified Party for which the indemnity set forth herein is sought without the prior written consent of the other party, which consent will not be unreasonably withheld.
11. LIMITATION OF LIABILITY
11.1. OTHER THAN IN EVENTS OF WILFUL MISCONDUCT AND THE INDEMNIFICATION OBLIGATION, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR TORT DAMAGES OF ANY NATURE OR KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF GOODWILL, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), SERVICE LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2. THE ENTIRE LIABILITY OF EITHER PARTY SHALL BE LIMITED TO THE AMOUNT OF CONSIDERATION ACTUALLY PAID OR DUE TO YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE LIMITATION OF LIABILITY IN THIS SECTION WILL NOT APPLY TO ANY OF THE FOLLOWING: (I) INDEMNIFICATION OBLIGATION UNDER SECTION ?10; OR (II) WILLFUL MISCONDUCT. THIS LIMITATION OF LIABILITY IS APPLICABLE TO THE FULLEST EXTENT PERMITTED UNDER THE APPLICABLE LAW.
11.3. Both Parties acknowledge and agree that the parties entered into this Agreement in reliance upon the disclaimers and limitations of liability set forth herein, which constitute a material agreement upon which this Agreement is based and correctly and fairly represent the allocation of risk as mutually agreed between the parties. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
12. TERM AND TERMINATION OF AGREEMENT
12.1. Term. This Agreement shall commence upon the date that this Agreement is deemed accepted as set forth in the preamble of this Agreement and shall remain in full force and effect until terminated as set forth hereunder (the "Term").
12.2.1. Either Party hereto may terminate this Agreement, at any time, for any reason, upon seven (7) business days prior written notice provided to the other Party.
12.2.2. Additionally, You shall have the right to terminate this Agreement upon three business (3) days prior written notice if Waypedia is in material breach of any material obligation under this Agreement and it fails to remedy such breach within the notice period. Waypedia shall have the right to temporarily or permanently deactivate your account and terminate this Agreement and your use of the Service, with immediate effect, in the event You have materially breached any of Your obligations and/or warranties under this Agreement inter alia, performed fraudulent actions for the creation of Qualified Transactions (as defined below), or if failed to comply with Waypedia and/or its advertisers polices and standards regarding the inventory made available by You, all according to the discretion of Waypedia or its advertisers, (the "Termination for Cause").
12.3. Effects of Termination. Upon termination of this Agreement for any reason: (i) Each party shall return to the other or destroy any Confidential Information then in its possession and; (ii) Other than in the event of the Termination for Cause by Waypedia, either party will remain liable for any amount due to the other party prior to the effective date of termination and such obligation to pay shall survive any termination of this Agreement (iii) All representations, warranties and provisions hereunder which, by nature, are meant to survive any termination of this Agreement shall so survive.
Waypedia shall be entitled to make appropriate and truthful reference to your App for marketing and promotional purposes and website listing, provided that Waypedia shall properly attribute the App's trademark and logo in compliance with its trademarks use guidelines.
If any dispute arising in connection with the performance of this Agreement shall not be amicably resolved, such dispute shall be solely and finally settled as follows: (i) if You are a resident of or incorporated in US - such dispute shall be governed by and be construed according to the laws of the State of Gerogia, without regard to the conflict of laws provisions thereto and shall be exclusively resolved in the competent court in Santa Clara County. Each party hereby irrevocably waives, to the fullest lawful extent, all right to trial by jury in any proceeding relating to this Agreement, the notes or the transactions they contemplate; (ii) if You are a resident of or incorporated in EU - such dispute shall be governed by and be construed according to the laws of England and Wales, without reference to conflict of laws principles and shall be exclusively resolved in the competent court of London; or (iii) if You are not a resident of or not incorporated in EU or US - such dispute shall be governed by and be construed according to the laws of the State of Israel, without regard to the conflict of laws provisions thereto and shall be exclusively resolved in the competent court of Tel-Aviv - Jaffa district. Notwithstanding the foregoing, either party will at all times have the right to commence proceedings in any other court of its choice with the appropriate jurisdiction for interim injunctive relief.
(i) You may not assign this Agreement in whole or in part without the prior written consent of Waypedia. Waypedia may assign this Agreement in whole or in part without Your prior written consent as long as its successor or assignee of this Agreement agrees in writing to be bound by this Agreement. Any assignment in violation of this provision shall be deemed null and void; (ii) This Agreement and the exhibit attached hereto constitute the entire and exclusive agreement between the Parties with respect to the subject matter hereof; (iii) In the event any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect; (iv) Any written notice required or permitted to be given under this Agreement shall be deemed to have been given and made if it is: (a) delivered in person, (b) sent by same day or overnight courier, (c) mailed by certified or registered mail, return receipt requested, postage prepaid, or (d) delivered by facsimile or email the transmittal of which with respect to fax shall be confirmed. Notices will be deemed effective on the date of delivery in the case of personal delivery, or three (3) business days after mailing or on the date of dispatch in the case of notification by facsimile or email. Waypedia' addresses for purposes of notice shall be the address detailed in its website and your addresses for purposes of notice shall be the address provided as part of the registration procedure unless updated in writing at a later stage.
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