Applifier, Inc.

GAME PUBLISHER TERMS AND CONDITIONS
Last Revised: December 3, 2012

THESE GAME PUBLISHER TERMS AND CONDITIONS (THE "TERMS") APPLY TO YOUR USE OF THE SERVICE (AS DEFINED BELOW) PROVIDED BY APPLIFIER, INC. ("APPLIFIER").

PLEASE READ THE TERMS AND CONDITIONS OF THE TERMS CAREFULLY. 

BY INTEGRATING THE SERVICE IN YOUR GAME OR OTHERWISE USING THE SERVICE IN CONNECTION WITH YOUR GAME, YOU ACKNOWLEDGE AND AGREE THAT: (I) YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THE TERMS; (II) YOU UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THE TERMS; AND (III) YOU AGREE TO BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THE TERMS.

IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THE TERMS, YOU MAY NOT INTEGRATE THE SERVICE IN YOUR GAME OR OTHERWISE USE THE SERVICE IN CONNECTION YOUR GAME.

FURTHER, YOU CERTIFY THAT: (I) YOU ARE NOT AN EMPLOYEE OF OR AFFILIATED WITH AN ORGANIZATION OFFERING A PRODUCT OR SERVICE THAT COMPETES WITH THE SERVICE; (II) YOU ARE NOT INVOLVED IN THE MARKETING, DEVELOPMENT OR PRODUCTION OF ANY PRODUCT OR SERVICE THAT COMPETES WITH THE SERVICE; AND (III) YOU ARE NOT AFFILIATED WITH OR ACTING FOR THE BENEFIT OF ANYONE WHO IS INVOLVED IN SUCH ACTIVITIES. IF YOU HAVE ANY SUCH CONFLICT OF INTEREST, YOU MAY NOT INTEGRATE THE SERVICE IN YOUR GAME OR OTHERWISE USE THE SERVICE IN CONNECTION WITH YOUR GAME.

IF YOU ARE ENTERING INTO THE TERMS ON BEHALF OF A COMPANY (OR OTHER ENTITY), YOU REPRESENT THAT YOU ARE THE EMPLOYEE OR AGENT OF SUCH COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY).

THE "EFFECTIVE DATE" OF THE TERMS IS THE DATE UPON WHICH YOU FIRST ACCESS THE SERVICE.

YOU (OR IF YOU ARE ENTERING INTO THE TERMS ON BEHALF OF A COMPANY OR OTHER ENTITY, SUCH COMPANY OR OTHER ENTITY) WILL BE REFERRED TO AS "GAME PUBLISHER" OR "YOU".

GRANTS

Subject to the terms and conditions of the Terms, Applifier grants to Game Publisher a nonexclusive, worldwide, nontransferable, nonsublicensable, revocable and limited license to: 

*The term "Games" includes all content, data or other materials embedded in the Games.

Subject to the terms and conditions of the Terms, Game Publisher grants to Applifier: 

RESTRICTIONS

Unless otherwise expressly permitted by the Terms, Game Publisher will not: (i) rent, sell, assign, sublicense, lease, lend, sell or redistribute the Service; (ii) reproduce, decompile, reverse engineer, disassemble, attempt to derive the software components of the Service (except as and only to the extent any of these restrictions are prohibited by applicable law); (iii) modify or create derivative works of the Service or any parts thereof; (iv) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the Service; (v) use any data mining, robots or similar data gathering or extraction methods with respect to the Service or any portion thereof; (vi) use the Service other than as intended for Game Publishers; or (vii) cause or permit any other party to do any of the foregoing.

REGISTRATION

Game Publisher agrees to: (i) provide accurate, current and complete information about it as may be prompted by any signup, login and/or registration forms on the administration interface ("Registration Data"); (ii) maintain the security of its password and identification; (iii) maintain and promptly update the Registration Data, and any other information Game Publisher provides to Applifier, in order to keep it accurate, current and complete; and (vi) accept all risks of unauthorized access to the Registration Data and any other information Game Publisher provides to Applifier.

GAME APPROVAL

While Applifier does not review or otherwise screen Games that incorporate the Service (or that are used in connection with the Service), Applifier reserves the right to terminate Game Publisher's right to use the Service with respect to a particular Game(s). Game Publisher acknowledges and agrees that Applifier may prohibit Game Publisher from using the Service with respect to certain Games at Applifier's sole discretion, at anytime. Further, at Applifier's request, Game Publisher must submit its Game for screening prior to being granted the right to used the Service in connection with such Game.

APPLIFIER'S RESPONSIBILITIES

Applifier will maintain an administration interface that enables the Game Publisher to access certain aggregated data relating to the use of the Service in Games.

Applifier will use commercially reasonable efforts to maintain the Service.

Applifier is responsible for all costs of developing and operating the Service.

Applifier will reasonably assist Game Publisher with the integration of Applifier's software libraries/tools within the Games so that Service can be accessed from the Games.

SERVICE DATA

Service Data includes:

Game Publisher acknowledges and agrees that the Service collects Service Data by using cookies and other technologies. 

The Service sends Service Data to Users via the Service interface or through APIs to the Game in the Users' computer or device. Service Data is solely intended for the particular User to whom it is sent, and Game Publisher acknowledges and agrees that it may not, in any way, attempt to access, store, transfer, cache, disclose or use such Service Data unless authorized, in writing, by Applifier and is in line with the integration instructions for Applifier's API.

PRIVACY REQUIREMENTS

Game Publisher will:

GAME PUBLISHER RIGHTS AND RESPONSIBILITIES

In addition to all of Game Publisher's other rights as set forth in the Terms:

Game Publisher acknowledges and agrees that: 

CONFIDENTIALITY

"Confidential Information" means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the "Disclosing Party") to the other party (the "Receiving Party") concerning or related to the Terms or the Disclosing Party (whether before, on or after the Effective Date) that is clearly identified as Confidential Information at time of disclosure. The Receiving Party will, during the term of the Terms and for three years thereafter, maintain in confidence the Confidential Information of the Disclosing Party and will not use such Confidential Information except as expressly permitted herein. The Receiving Party will use the same degree of care in protecting the Disclosing Party's Confidential Information as the Receiving Party uses to protect its own Confidential Information from unauthorized use or disclosure, but in no event less than reasonable care. Any Confidential Information of the Disclosing Party will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party's obligations under the Terms. Confidential Information will not include information that: (i) is in or enters the public domain without breach of the Terms through no fault of the Receiving Party; (ii) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (iii) the Receiving Party can demonstrate was developed by the Receiving Party independently and without use of or reference to the Disclosing Party's Confidential Information; or (iii) the Receiving Party receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation.

PUBLICITY

Each party consents to the other party's use of such party's name and logo on its websites, applications, games and publicly-available printed materials, identifying Game Publisher's and Applifier's relationship. 

OWNERSHIP

As between Applifier and Game Publisher, and subject to the Grants section: (i) Game Publisher owns all right, title and interest in and to the Games (except for Applifier's software libraries/tools embedded within the Games) and any and all related Intellectual Property Rights; and (ii) Applifier owns all right, title and interest in and to the Service, Applifier's software libraries/tools, all data generated and collected by the Service (including, but not limited to, data about users and data generated by users use of the Games and the Service Data) and any and all related Intellectual Property Rights; and (iii) the User creating each piece of Generated Content owns all right, title and interest in and to that Generated Content subject to the licenses granted by and to Game Publisher and Applifier to that user under these Terms and the Terms of Service for Users. "Intellectual Property Rights" means any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction in the world, including any applications and registrations for any of the foregoing. Applifier reserves all rights not expressly granted in the Terms, and no licenses are granted by Applifier to Game Publisher under the Terms, whether by implication, estoppel or otherwise, except as set forth in the Terms.

REPRESENTATIONS AND WARRANTIES

Game Publisher represents and warrants to Applifier that: (i) it has the full right to enter into and to perform the obligations of the Terms without breach of or default under any agreement with any third party; (ii) the Terms are valid, binding and enforceable against Game Publisher; (iii) the Games do not contain any viruses, software routines or other code designed to permit unauthorized access, disable, erase or otherwise harm software, hardware or data, or perform any other harmful actions; (iv) the Games do not contain any content that is false, misleading, fraudulent, defamatory, libelous or invasive of another's privacy; (v) the Games do not violate, misappropriate or infringe any Intellectual Property Rights or rights of privacy or publicity of any third party; (vi) the Games do not display any content that is obscene, promotes illegal activities or is otherwise prohibited by any applicable Laws; (vii) it will comply with all applicable federal, national, state, provincial, municipal and local laws, regulations, rules, judicial decrees, directives, decisions and judgments (including, but not limited to, the CAN-SPAM Act of 2003, the Children's Online Privacy Protection Act, the EU privacy laws and any relevant data protection and privacy laws in the United States and the European Union) (collectively, "Laws") with respect to the Games and in the performance of its acts under the Terms; (viii) it will not use any data or information of Users in a way contrary to the terms of the Terms; (ix) its Registration Data is true, accurate and complete; (x) it will abide by all of the restrictions set forth in the Terms; (xi) it will not turn on Player Recording without the applicable User opting-in; and (xii) it will maintain and comply with its published privacy policy (and its privacy policy will comply with all applicable Laws).

DISCLAIMER

THE SERVICE (and ALL CONTENT AND TECHNOLOGY PROVIDED BY APPLIFIER) IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. APPLIFIER DOES NOT WARRANT THAT THE SERVICE OR any other CONTENT or TECHNOLOGY PROVIDED APPLIFIER WILL BE UNINTERRUPTED OR ERROR-FREE. APPLIFIER DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICE, 

ALL OTHER content and TECHNOLOGY PROVIDED APPLIFIER and the generated contenT WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT APPLIFIER KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. GAME PUBLISHER ACKNOWLEDGES AND AGREES THAT IT HAS RELIED ON NO WARRANTIES. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.

INDEMNIFICATION

Game Publisher, at its sole cost and expense, will defend, indemnify and hold Applifier (and its directors, officers, employees, consultants, affiliates and agents) and Users (collectively, "Indemnitees") harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys' costs and fees, expert witnesses' costs and fees, penalties, interest and disbursements) arising from or relating to any claim (including third party claims), suit, action or proceeding ("Claim") against any Indemnitees arising out of or related to: (i) any breach or alleged breach of the Terms by Game Publisher (including, but not limited to any breach or alleged breach of any of Game Publisher's representations or warranties); (ii) any negligent act or willful misconduct by Game Publisher or any party acting on Game Publisher's behalf; (iii) the Games (including, but not limited to, the Games (or any portion thereof) infringing or misappropriating any Intellectual Property Rights or any other right of any third party); (iv) any website owned or operated by Game Publisher; or (v) Game Publisher's use of User data, Service Data and/or data provided by Applifier.

LIMITATION OF LIABILITY

IN NO EVENT WILL: (I) APPLIFIER BE LIABLE TO GAME PUBLISHER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE TERMS AND/OR THE SERVICE, any other CONTENT or TECHNOLOGY PROVIDED APPLIFIER AND/OR ANY generated contenT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF APPLIFIER HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) APPLIFIER'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THE TERMS, THE SERVICE, any other CONTENT or TECHNOLOGY PROVIDED APPLIFIER AND/OR ANY generated contenT EXCEED USD $100.00. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THE TERMS IS DEEMED TO HAVE FAILED IN ITS ESSENTIAL PURPOSE.

TERMINATION AND EFFECT OF TERMINATION

The term of the Terms will begin on the Effective Date and continue until terminated as described in this section. 

Either party may terminate the Terms, with or without cause, with 30 days advance written notice to the other party. Further, Applifier may terminate the Terms immediately and with cause, if Applifier reasonably believes that Game Publisher has materially breached the Terms. 

Upon termination of the Terms: (i) each party's obligations under the Terms will immediately cease; and (ii) both parties will promptly provide to the other party all Confidential Information then in its possession or destroy all copies of the Confidential Information. The following sections will survive any termination of the Terms: "Restrictions," "Confidentiality," "Ownership," "Disclaimer," "Indemnification," "Limitation of Liability," "Termination; Effect of Termination," and "General Provisions." Notwithstanding any right to the contrary in the Terms, all grants with respect to Generated Content will survive any termination of the Terms.

YOU HEREBY ACKNOWLEDGE AND AGREE THAT: (I) APPLIFIER'S TERMINATION, SUSPENSION OR CHANGE OF THE SERVICE MAY CAUSE YOUR GAME TO NOT FUNCTION CORRECTLY OR AT ALL; AND (II) APPLIFIER WILL HAVE NO LIABILITY OR RESPONSIBILITY WHATSOEVER AS A RESULT OF YOUR GAME FAILING TO FUNCTION AS A RESULT OF ANY TERMINATION OR SUSPENSION OF THE TERMS.

MODIFICATIONS TO TERMS AND SERVICE

Notice of Modification Method: Applifier reserves the right to change or modify any of the terms and conditions contained in the Terms or any policy or guideline of the Service, at any time and in its sole discretion by posting of the revisions via the Service. Additionally, notice may be provided by sending an email, by posting the revised Terms on the Site or by such other form of notice as determined by Applifier.

When Modifications with be Effective: Any changes or modifications will be effective within 30 days of the posting of the revisions via the Service. Therefore, Game Publisher should review the Terms whenever Game Publisher accesses the Service and at least every 30 days to make sure that Game Publisher understands the terms and conditions that will apply to Game Publisher's use of the Service. If in the reasonable opinion of Applifier, a change or modification is materially urgent or important to safeguarding, improving or guaranteeing the operability of the Service ("Urgent Modification"), Applifier may make such Urgent Modification effective immediately and provide notice to Game Publisher without undue delay. If Game Publisher disagrees with any changes or modifications to the Terms, Game Publisher should stop using the Service because Game Publisher's continued use of the Service following the posting of the revised Terms or other notice will constitute Game Publisher's acceptance of such changes or modifications.

Types of Modifications: Applifier may at its sole discretion and with notice to Game Publisher: (i) impose limits on certain features and services or restrict Game Publisher's access to any part or all of the Service; and (ii) introduce new features with new revenue or pricing models in connection with the Service.

GENERAL PROVISIONS

The Terms (and Applifier's Acceptable Use Policy which is incorporated into the Terms by reference) are the entire agreement and understanding of the parties relating to the subject matter hereof, and supersede any and all prior agreements, proposals, negotiations, conversations, discussions and understandings between the parties. 

The Terms will be governed by and construed in accordance with the laws of the State of California, without resort to its conflict of law provisions. The parties agree that the venue for any dispute, obligation or action of any kind arising under the Terms will be in the state or federal courts located in the County of Santa Clara, California, and the parties irrevocably consent to the exclusive jurisdiction of the state and federal courts of the state of California for any dispute, obligation or action hereunder and agree not to commence or prosecute any suit, proceeding or claim hereunder, except in such courts. 

Neither the Terms nor any right or duty under the Terms may be transferred, assigned or delegated by Game Publisher, by operation of law or otherwise, without the prior written consent of Applifier, and any attempted transfer, assignment or delegation without Applifier's consent will be void and without effect. Subject to the foregoing, the Terms will be binding upon and will inure to the benefit of all of the parties hereto and their respective representatives, heirs, administrators, successors and permitted assigns. 

Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties is and will only be that of independent contractors. 

If any provision of the Terms is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other provisions of the Terms will remain in full force and effect so long as the economic or legal substance of the transactions contemplated by the Terms is not affected in any manner adverse to any party. Upon any determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify the Terms to affect the original intent of the parties as closely as possible and in an acceptable manner so that the transactions contemplated in the Terms are fulfilled. 

No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies in the Terms are cumulative and are not exclusive of any other rights or remedies available under the Terms, by law or in equity. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default. 

Notwithstanding any terms to the contrary in the Terms, Applifier may choose to electronically deliver all communications with Game Publisher, which may include: (i) email to Game Publisher's email address indicated in Game Publisher's communications with Applifier or upon registration with Applifier; or (ii) posting messages that are displayed to Game Publisher when Game Publisher logs into or accesses Game Publisher's administration interface. Applifier's electronic communications to Game Publisher may transmit or convey information about actions taken on Game Publisher's request, portions of Game Publisher's request that may be incomplete or require additional explanation, any notices required under Law and any notices. Game Publisher agrees to do business electronically with Applifier, and to receive, electronically, all current and future notices, disclosures, communications and information, and that the aforementioned provided electronically satisfies any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received the day of receipt as evidenced by such email.