Thank you for your interest in the Enhance®, Enhance® ZeroCode and EnhanceAds™ (collectively referred to herein as, the “Platform”). These Terms of Service are the legally binding terms and conditions that publishers must agree to in order to utilize and/or incorporate the Platform with your mobile applications and games.
TERMS OF SERVICE
IMPORTANT – READ CAREFULLY BEFORE PROCEEDING – THIS IS A BINDING LEGAL CONTRACT
YOU UNDERSTAND AND AGREE THAT BY SIGNING UP TO THE PLATFORM, AND/OR DOWNLOADING OR USING ANY PART OF THE SERVICES PROVIDED BY OR THROUGH THE PLATFORM, THE PUBLISHER (DEFINED BELOW) IS AGREEING TO BE LEGALLY BOUND BY ALL OF THESE TERMS AND CONDITIONS, WHICH INCLUDES A LIMITED LICENSE, DISCLAIMERS OF WARRANTY, LIMITATIONS OF LIABILITY AND MANDATORY ARBITRATION OF DISPUTES AND CLASS ACTION AND JURY WAIVERS. IF PUBLISHER DOES NOT AGREE TO THESE TERMS, PUBLISHER IS NOT PERMITTED TO ACCESS THE PLATFORM AND PUBLISHER WILL HAVE NO LICENSE TO USE THE PLATFORM.
IMPORTANT: The Platform is a proprietary product and is protected by copyright and other intellectual property laws. It is licensed (not sold) subject to the condition that you agree to and abide by the terms and conditions of these Terms.
PRINT A COPY OF THESE TERMS AND CONDITIONS OF SERVICE FOR YOUR RECORDS.
The Enhance®, Enhance® ZeroCode Platform Terms of Service (the “Terms”) is entered into by and between the Publisher (i.e., the corporation, business, other entity, or natural person who operates the game or application that will incorporate any aspect of the Platform) (“Publisher”, “you” or “your”) and Enhance, Inc. (Doing Business As “Enhance My App, Inc” in California) (“ENHANCE”, “we”, “our” or “us”) and sets forth Publisher’s rights and obligations with respect to the use and/or incorporation of the Platform with your mobile application or game or other third party platform (collectively, the “Publisher Service”). We operate the Platform for the inclusion, modification, and optimization of third party services in your Publisher Service, including, without limitation, the ENHANCE Drag and Drop Library, proprietary software, interfaces and APIs provided to access the Platform, and any associated services, results or reports provided to you in any way. For purposes of these Terms, “Enhance®” means ENHANCE’s proprietary service that allows ENHANCE to provide to Publisher, amongst other things data collection, attribution, app management services, and reporting and advertising management services such as mediation, curation, optimization, trafficking, campaign management and placement of certain advertising from third party advertising networks (“Advertisers”) in the Publisher Service using the Platform. “Enhance® ZeroCode” enables Publishers to utilize certain features of the Platform without incorporating the full Enhance® Platform. Additional terms and conditions (“Additional Terms”) may be required for use and distribution of the Platform, under certain situations, whether by click through or written agreement (which must be signed by an officer of ENHANCE to be enforceable against it), which Additional Terms shall amend these Terms and govern in the event of any conflict.
1.0 REGISTRATION AND ACCOUNT INFORMATION
We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.
If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, or any applicable law, then we may suspend or terminate your account. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability.
When we refer to “Content” herein we mean applications (apps), web or app pages, games, text, videos, images, audio clips, photos, graphics, advertisements, sponsorships and/or other types of content or data. Publisher is solely responsible for any Content on the Publisher Service (“Publisher Content”). Publisher represents, warrants and covenants to ENHANCE that the intellectual property rights in the Content contains only those items and rights which are: (A) owned by Publisher; (B) in the public domain; or (C) rightfully used by Publisher pursuant to a valid and enforceable license or other contract (each, a "License Agreement"). Such License Agreements are valid and binding obligations of Publisher, enforceable in accordance with their terms, and there exists no event or condition which will result in a violation or breach of, or constitute a default by Publisher or, to the knowledge of Publisher, the other party thereto, under any such License Agreement. Furthermore, Publisher represents, warrants and covenants that any Publisher Content will not:
• Infringe the copyright, trademark, trade secret, or other intellectual property, proprietary or other right of others;
• Violate the privacy, publicity, or other rights of third parties;
• Be false or inaccurate or become false or inaccurate at any time;
• Be discriminatory, unlawful, tortious, obscene, fraudulent, defamatory, harmful, threatening, pornographic, indecent, vulgar, harassing, discourteous, hateful, abusive or racially, ethnically, religiously, sexually or otherwise offensive, as determined by us in our sole discretion;
• Disclose or provide information protected under any law, agreement or fiduciary relationship, including, but not limited to, proprietary or confidential information of others;
• Misrepresent the source of the Content;
• Contain any virus, Trojan horse, worm, time bomb, cancelbot, or other disabling device or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
• Advocate or encourage any illegal activity; or
• Have the potential to create liability for us or cause us to violate the requirements of or to lose the services, in whole or in part, of our Internet service providers or other suppliers.
We do not endorse any Publisher Content or any opinion, recommendation, or advice expressed in any Publisher Content, and we expressly disclaim any and all liability in connection with any Publisher Content. We may decide whether any Publisher Content is inappropriate or not in compliance with these Terms, or otherwise appropriate for association with the Platform, and reserve the right to remove Publisher Content and/or suspend or terminate your use of the Platform at any time, without prior notice and in our sole discretion.
3.0 OWNERSHIP AND LICENSES.
3.1 Proprietary Rights. The Platform is owned by ENHANCE, or an ENHANCE licensor, is copyrighted and is licensed not sold. ENHANCE, or its licensors, own and shall retain all proprietary rights, including any and all patent, copyright, trade secret, trademark and other intellectual property rights, in and to the Platform, and any corrections, bug fixes, enhancements, updates, Materials or other modifications to the Platform, whether made by Publisher, ENHANCE or any third party. Publisher acknowledges that the license(s) granted under these Terms do(es) not provide Publisher with title to or ownership of the Platform, but only a right of limited use under the terms and conditions of these Terms. Publisher shall keep the Platform free and clear of all claims, liens and encumbrances. Except for the rights expressly granted herein, no other rights are granted to Publisher with respect to the Platform and all right, title and interest in the Platform shall at all times remain the property of ENHANCE or ENHANCE’s licensors. Except as expressly granted in these Terms, Publisher will have no rights to the source code for the Platform and Publisher agrees that only ENHANCE has the right to maintain, enhance, or otherwise modify the Platform. Publisher will own any Publisher Service created by Publisher, except for any Platform elements incorporated therein. Any and all moral rights in and to the Platform are hereby reserved exclusively to and for the benefit of ENHANCE. ENHANCE and its licensors reserve all rights not expressly granted in these Terms. ENHANCE may, at its sole discretion, provide Publisher with assistance in installing and configuring the Platform on its Publisher Site (collectively, “Services”). If, during the course of providing Services, ENHANCE creates scripts, develops or modifies the Platform, or creates any other materials or intellectual property (collectively “Materials”), whether or not at Publisher’s suggestion or direction, then all title, right and interest whatsoever (including, but not limited to; copyright, right to create derivative works, patents, trademarks, trade secrets, mask works, moral rights and any other intellectual property or proprietary rights) in all such Materials will vest and remain with ENHANCE.
3.2 Grant. ENHANCE grants to Publisher a limited, non-exclusive, non-transferable, non-sublicenseable license, to download, install, incorporate (into the Publisher Service), use and distribute the Platform, and receive any services provided by ENHANCE, solely to design, develop and test for Publisher’s use, in compiled, object code form only, and host the Platform on Publisher’s servers (subject to any applicable contractual server limitations) for use in connection with such Publisher Service consistent with these Terms. Publisher may further allow Publisher’s agents and contractors (including, without limitation, outsourcers) that have agreed in writing to comply with these Terms and to limit their use to work performed for Publisher: (i) to use the Platform on their servers (subject to any applicable contractual server limitations of Publisher) solely for this purpose and Publisher is responsible for any such agent’s or contractor’s compliance with these Terms for that use; and (ii) copy Platform object code for the sole purpose of internally designing, developing, and testing Publisher Service and incorporating such code, solely in compiled, object code form, into such Publisher Service for use as set forth above. As a condition of the license, Publisher agrees to abide by the restrictions in Sections 3.3 and 3.4 below.
3.3 Certain Restrictions on Use. Publisher will not, and will not permit any third party to: (i) modify or create any derivative work of any part of the Platform (for purposes of certainty, Publisher may, subject to the provisions of these Terms, create a Publisher Site that incorporates Platform object code, but may not otherwise create derivative works or collective works of the Platform); (ii) alter, remove, or obscure any copyright, trademark, or other proprietary notices on the Platform; (iii) disassemble, decompile, reverse assemble, reverse compile, reverse engineer, or otherwise translate the Platform or otherwise attempt to gain access to the source code to the Platform, or use any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, the Platform (or purport to permit any third party to do so); (iv) sell, license, sublicense, publish, display, distribute, assign, or otherwise transfer the Platform, or any rights in the Platform (in whole or in part) to a third party (other than to license use of the Publisher Service, so long as such licenses do not permit any use of the Platform apart from the normal operation of the Publisher Service without ENHANCE’s prior written consent; (v) use ENHANCE’s name, logos, or other trademarks to market Publisher Service, or otherwise, without ENHANCE’s prior written consent; (vi) copy the Platform, except for installing and loading the Platform onto servers for the purpose of executing the Platform consistent with the scope of licenses granted hereunder, incorporating Platform object code into Publisher Service as permitted hereunder, and for creating a limited back-up copy for use consistent with the license(s) granted; (vii) use the Platform, or any element thereof, to create (or allow third parties to create) any software product capable of emulating or competing with the Platform (or facilitating the emulation of or competition with the Platform), or use any of the Platform’s components, files, modules, audio-visual content, or related licensed materials separately from the Platform; (viii) exceed the scope of the license(s) granted; (ix) encumber the Platform or any rights thereto; (x) conduct or promote any illegal activities while using the Platform; and/or (xi) take any action which interferes with the performance or functionality of the Platform. Additionally, in connection with the Platform, we may post specific technical, integration and display requirements on the ENHANCE website that Publishers are required to comply with when incorporating the Platform on their Publisher Service. Any such requirements are expressly incorporated in these Terms by this reference and you agree to strictly comply with all such requirements as we post on the ENHANCE web site and/or give you notice of from time to time. Upon our written request, you agree to provide us with written documentation (in any form that we reasonably request), that you are in compliance with the terms and conditions of these Terms, including, without limitation, the requirements set forth in this Section 3.3.
3.4 Additional Restrictions / Non-Compete. In addition to the restrictions on use set forth in Section 3.3 above, use of the Platform is strictly prohibited by a competitor of ENHANCE and Publisher represents and covenants that Publisher and Publisher’s agents or contractors (including, without limitation, outsourcers) are not, and will not become, competitors of ENHANCE. The license will automatically terminate upon a breach of this Section 3.4.
4.0 OUR TRADEMARKS.
Enhance®, Enhance® ZeroCode, EnhanceAds™, and other ENHANCE graphics, logos, designs, page headers, Platform icons, scripts and service names are registered trademarks, service marks or trade dress of ENHANCE or its affiliates in the U.S. and/or other countries (collectively, with the registered trademarks, the “ENHANCE Marks”). All other logos and trademarks are trademarks of their respective owners. You are not authorized to use any ENHANCE Marks without the prior written permission of ENHANCE. Ownership of all ENHANCE Marks and the goodwill associated therewith remains with us. We hereby grant Publishers a non-exclusive right and license to display any ENHANCE Marks but solely as incorporated into, and subject to the restrictions of use associated with, the code and Platform licensed herein. Except for this limited license granted to Publishers, you are not authorized to use any ENHANCE Marks.
In the event that you provide us any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Platform (collectively, the “Feedback”), you agree we may use the Feedback to modify our products and services and that you will not be due any compensation, including any royalty related to the product or service that incorporates your Feedback. You grant to us an irrevocable, worldwide, royalty-free, fully paid, perpetual, license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether you provide the Feedback on the ENHANCE web site or through any other method of communication with us, unless we have entered into a separate agreement with you that provides otherwise.
You agree that, unless you comply with COPPA or other similar relevant legislation respecting children’s privacy and the collection and use of children’s information, you will not use Enhance® in connection with any application labeled or described as a “Kids” or “Children” application and will not: (a) use Enhance® in connection with any application, advertisement or service directed at children (minors under the age of thirteen (13); or (b) to collect any personal information of children.
7.0 FEES, PAYMENT & EXPENSES
Unless otherwise agreed to in writing by the parties, the Platform is provided to you free of charge.
If you choose to manage services - such as ads - yourself, ENHANCE will not take any revenue share from the developer or publisher Net.
If you choose to use ENHANCE's Fully Managed Ad System, EnhanceAds™, all revenue from ads trafficked through will be collected by ENHANCE and a portion of these revenues will be paid to you on a variable basis, as determined by us in our sole and absolute discretion. Our goal is to maximize the net revenue to you, and we will make every effort to do so, but since we may have different deal structures in place with different Service Providers it is impossible to give an accurate account of total revenue share. You expressly waive any and all right to audit our books and records with respect to the revenues paid to you pursuant to these Terms. Revenue reports will be provided to you monthly, and payment will be made to you within forty-five (45) days of the month end in which the revenues were generated. We reserve the right to make payments to you only when your accumulated unpaid earnings reach $100.00 or more and may deduct any wire transfer fee, if a wire transfer is requested. ENHANCE may change its fees and payment policies for the Platform from time to time. Changes will be posted here (or such other URL that ENHANCE may provide from time to time).
You agree that you are solely liable for any and all costs, fees, and other expenses incurred by you and resulting from your use of Platform, including, but not limited to, costs owed to your cell phone carrier or internet provider, data plan costs, costs associated with any other third parties, platforms, software or any other incidental fees.
8.0 REPORTS & RESULTS
Subject to the terms and conditions of these Terms, you may remotely access, view and download certain reports (“Reports”) we make available through the Platform. ENHANCE shall own and retain all right, title and interest in and to any Reports and other results, data and/or information provided to you through the Platform (collectively, “Results”). You may use the Reports and Results only in connection with your internal business purposes and the may not be made publicly available unless you first obtain our prior written permission.
9.0 MODIFICATIONS TO TERMS AND NOTICE TO YOU.
The Platform and our related services are evolving. Accordingly, we may change the terms of these Terms from time to time on a going-forward basis. We will notify you of any such material changes by posting notice of the changes on ENHANCE web site, and/or, in our sole discretion, by email. Any such modifications become effective upon the earlier to occur of: (i) your acknowledgement of such modifications; or (ii) your continued access to and/or use of the Platform after we post notice of such modifications. It is your sole responsibility to check the ENHANCE web site from time to time to view any such changes to the terms in the Terms and you agree that posting changes there is sufficient notice to you. If you do not agree to any changes, if and when such changes may be made to the Terms, you must cease access to or use of the Platform.
10.0 MODIFICATIONS TO THE PLATFORM.
We reserve the right to modify or discontinue the Platform with or without notice to you. We will not be liable to you or any third party should we exercise our right to modify or discontinue the Platform. If you object to any such changes, your sole recourse will be to cease access to the Platform. Continued use of the Platform following notice of any such changes will indicate your acknowledgement of such changes and satisfaction with the Platform as so modified. You agree that we, in our sole discretion, may immediately terminate your access to the Platform at any time, for any reason, in our sole discretion. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE PLATFORM.
These Terms and the license (as more fully set forth in Section 3) granted hereunder shall be effective as of the date Publisher downloads and/or uses the Platform (whichever occurs first) and will continue, unless terminated in accordance with these Terms. ENHANCE may terminate these Terms at any time, effective on delivery of written notice. In addition, except as set forth above, either party shall have the right to terminate these Terms and the license(s) granted if: (i) the other party fails to comply with any of the terms and conditions of these Terms and such default has not been cured within fifteen (15) days after receiving written notice of such default from the non-defaulting party; or (ii) the other party terminates or suspends its business, or has wound up or liquidated, voluntarily or otherwise, or fails to make reasonable assurances of its ability to timely and fully meet its obligations under these Terms within a reasonable time upon a reasonable request. Sections 3.1, 5, 6, and 9 through and including 17 shall survive any terminations.
12.0 CONFIDENTIAL INFORMATION.
Publisher agrees that the information and Reports provided to Publisher regarding the Platform and access and use of the Platform contains confidential information, including trade secrets, know-how and other information that are the exclusive property of ENHANCE or its licensors. During the period these Terms are in effect and at all times after its termination, Publisher shall maintain the confidentiality of this information and shall not sell, license, sublicense, publish, display, distribute, disclose, or otherwise make available this information to any third party nor use such information except as expressly authorized by these Terms or any applicable Additional Terms. Publisher shall not disclose any such information concerning the Platform to parties who are not employees or permitted agents or contractors (including, without limitation, outsourcers) of Publisher without ENHANCE’s prior written consent. Publisher agrees that Publisher will take appropriate action by instruction, agreement, or otherwise with Publisher’s employees and permitted agents and contractors to satisfy Publisher’s obligations under these Terms with respect to use, protection, and security of ENHANCE’s confidential information. It is further understood and agreed that money damages alone would not be a sufficient remedy for any breach of Publisher’s obligations under this Section 9. In the event of a breach or anticipatory breach of this Section, ENHANCE will be entitled to seek equitable relief in addition to any other rights or remedies provided by law or under these Terms, without the need to post any bond or surety or establish a likelihood of harm. The obligations of confidentiality and restriction on use contained herein shall not apply to any confidential information that Publisher is clearly able to demonstrate: (i) is required to be disclosed by applicable law or regulation; provided, Publisher first gives ENHANCE notice and an opportunity to limit the disclosure; (ii) was lawfully received by the Publisher from a third party, which third party was, to the knowledge of the Publisher, free of any obligation of confidentiality; (iii) was already in the lawful possession of the Publisher without an obligation to maintain its confidentiality prior to disclosure by ENHANCE; or (iv) becomes known to the general public not due to any act or omission by Publisher.
THE PLATFORM AS WELL AS ALL SOFTWARE, MATERIALS, AND TECHNOLOGY USED TO PROVIDE ANY OF THE FOREGOING, ARE PROVIDED ON AN “AS IS” BASIS AND ENHANCE AND ITS LICENSORS, IF ANY, MAKE NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PLATFORM, DOCUMENTATION OR OTHER ACCOMPANYING MATERIAL OR SERVICES. ENHANCE SPECIFICALLY DISCLAIMS (AND PUBLISHER WAIVES) ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, OR WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE. IMPLIED WARRANTIES ON THE PLATFORM THAT CANNOT BE LEGALLY DISCLAIMED, IF ANY, ARE LIMITED TO SIXTY (60) DAYS. ALL UNIFORM COMMERCIAL CODE WARRANTIES ARE EXPRESSLY DISCLAIMED BY ENHANCE. ENHANCE DOES NOT WARRANT THAT THE OPERATION OR OTHER USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE OR WILL NOT CAUSE DAMAGE OR DISRUPTION TO PUBLISHER’S DATA, COMPUTERS OR NETWORKS OR THAT ERRORS WITH THE PLATFORM WILL BE FIXED BY ENHANCE. ENHANCE FURTHER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SERVICES OR THE EMAIL TECHNICAL SUPPORT OR CONTRACTED MAINTENANCE AND SUPPORT AND THE PARTIES AGREE THAT ENHANCE SHALL NOT BE HELD LIABLE OR RESPONSIBLE IN ANY WAY FOR ENHANCE’S ACTIONS OR OMISSIONS IN PROVIDING SERVICES OR SUPPORT SERVICES. APPLICATIONS DEVELOPED WITH THE PLATFORM MAY NOT BE FAULT TOLERANT. THESE DISCLAIMERS OF WARRANTY CONSTITUTE AN ESSENTIAL PART OF THESE TERMS. SOME STATES/JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT FULLY APPLY TO PUBLISHER TO THE EXTENT REQUIRED TO COMPLY WITH APPLICABLE LAW.
14.0. LIMITATIONS OF LIABILITY AND CONTENT.
YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO THE PLATFORM, AND TO PROVIDE THE SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. IN NO EVENT WILL ENHANCE, ITS PARENT, AFFILIATES, OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL AND CONSEQUENTIAL DAMAGES OR LIKE DAMAGES, INCLUDING, LOST PROFITS, GOODWILL, LOST OPPORTUNITIES AND INTANGIBLE LOSSES, ARISING IN CONNECTION WITH THE PLATFORM, SERVICES OR THESE TERMS, INCLUDING, FOR EXAMPLE AND CLARITY ONLY, DAMAGES RESULTING FROM LOST DATA, LOST EMPLOYMENT OPPORTUNITIES, OR BUSINESS INTERRUPTIONS, OR RESULTING FROM THE USE OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE PLATFORM OR CONTENT. THESE LIMITATIONS OF LIABILITY APPLY REGARDLESS OF THE NATURE OF ANY CLAIM, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT ENHANCE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
PUBLISHER AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING IN CONNECTION WITH ANY VIOLATION BY US OF THESE TERMS IS TO DISCONTINUE USING THE PLATFORM. IN THE EVENT THAT A COURT DETERMINES THAT THE PRECEDING SENTENCE IS UNENFORCEABLE, OUR AGGREGATE LIABILITY FOR ALL CLAIMS ARISING IN CONNECTION WITH ANY VIOLATION OF THESE TERMS WILL NOT EXCEED TEN DOLLARS (U.S. $10.00). Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain types of damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any warranty or limit our liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.
WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL WE OR OUR LICENSORS BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, OR NON-PERFORMANCE OF THIRD PARTIES.
Publisher agrees to indemnify, defend and hold harmless ENHANCE, our officers, directors, members, co-branders and other partners, employees, consultants and agents, from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) that such parties may incur as a result of or arising from: (i) any Publisher Content posted or transmitted through the Platform that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (ii) modifications, alterations or enhancements of the Platform made by Publisher or a third party on Publisher’s behalf; (iii) Publisher’s development, distribution of, or use by Publisher, or any third party, of any Publisher Site; (iv) Publisher’s violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Platform or your activities in connection with the Publisher Service; or (v) Publisher’s breach or alleged breach of these Terms. Publisher will cooperate as fully required by ENHANCE in the defense of any claim subject to the indemnification obligations set forth herein. Notwithstanding the foregoing, ENHANCE retains the exclusive right to settle, compromise, and pay any and all claims. ENHANCE reserves the right to assume the exclusive defense and control of any claims. Publisher will not settle any claims without, in each instance, the prior written consent of an officer of ENHANCE.
16.0 ELECTRONIC COMMUNICATIONS.
We can only give you the benefits of our service by conducting business through the Internet, and therefore we need you to consent to our giving you Communications electronically. This Section 16 informs you of your rights when receiving Communications from us electronically. For contractual purposes, you: (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if it were in a writing. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non-waivable rights. You may also receive a copy of these Terms by accessing the ENHANCE web site. You may withdraw your consent to receive Communications electronically by contacting us in the manner described below. If you withdraw your consent, from that time forward, you must stop using the Platform. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between us prior to the time you withdraw your consent. Please keep us informed of any changes in your email or mailing address so that you continue to receive all Communications without interruption.
17.0 GENERAL TERMS.
17.1 Assignment. Publisher may not assign these Terms and/or any of its rights or delegate any of its obligations without the prior written consent of ENHANCE (which may be granted or withheld in its sole discretion), and any such attempted assignment shall be void. ENHANCE may freely assign or delegate its rights and obligations, in whole or in part. In the case of any permitted assignment or transfer of or under these Terms, these Terms will be binding upon, and inure to the benefit of, the successors and assignees of the parties of these Terms.
17.2 Disputes; Arbitration; Governing Law; Jury and Class Action Waivers; and Limitation of Time to Bring Claims. These Terms shall in all respects be governed by the laws of the State of California without reference to its principles of conflicts of laws that could result in application of other law, regardless of Publisher’s location. Both parties acknowledge and agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to the license of the Platform hereunder. Publisher acknowledges that ENHANCE’s rights and Publisher’s obligations to ENHANCE are of a unique and irreplaceable nature, the loss of which shall irreparably harm ENHANCE and which cannot be replaced by monetary damages alone so that ENHANCE shall be entitled to injunctive or other equitable relief (without the obligation of posting any bond or surety) in the event of any breach or anticipatory breach by Publisher. Publisher irrevocably waives all rights to seek injunctive or other equitable relief and agree to limit Publisher’s claims to claims for money damages (if any). Publisher agrees that any suit, action or proceeding arising out of or relating to these Terms or any of the transactions contemplated herein or related to the Platform or services herein (including, without limitation, statutory, equitable or tort claims) shall be resolved solely by binding arbitration before a sole arbitrator under the commercial dispute rules and regulations of the American Arbitration Association (“AAA”); provided, however, that notwithstanding the parties’ decision to resolve any and all disputes arising under these Terms through arbitration, ENHANCE may bring an action in any court of applicable jurisdiction to protect its intellectual property rights or to seek to obtain injunctive relief or other equitable relief from a court to enforce the provisions these Terms or to enforce the decision of the arbitrator. Any arbitration shall be held in Los Angeles, California and to the extent an action at law is permitted hereunder, Publisher consents to the jurisdiction and venue of the courts located in Los Angeles, California. The parties agree that questions of arbitrability shall be decided by the arbitrator. The arbitrator shall apply the substantive laws of the State of California, shall issue a written decision, and shall have the power to award any legal remedies consistent with these Terms except for punitive, exemplary or special damages. The parties will split the arbitrator’s fee. Disputes will be resolved only on an individual basis and will not be consolidated with any other claims, suits or other proceedings that involve any claim or controversy of any other party. If, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to this Section holds that this restriction is unconscionable or unenforceable, then our agreement in this Section to arbitrate will not apply and the dispute must be brought exclusively in court pursuant to this Section; provided, however, that Publisher expressly waives the right to a jury trial with respect to any such dispute. Unless otherwise required by applicable law without the possibility of contractual waiver or limitation: 1) neither party will bring a legal action, regardless of form, for any claim arising out of or related to these Terms (or any applicable Additional Terms) more than two (2) years after the cause of action arose; and 2) upon the expiration of such time limit, any such claim and all respective rights related to the claim lapse. The prevailing party in any action to enforce or interpret these Terms shall be entitled to an award of its costs and expenses (including, without limitation, reasonable, outside attorneys fees).
17.3 Notices. Unless expressly stated otherwise herein, any notice, demand, request or delivery required or permitted to be given by either party pursuant to the terms of these Terms shall be in writing and shall be deemed given: (i) when delivered personally; (ii) on the next business day after timely delivery to an overnight courier; (iii) on the third business day after deposit in the U.S. mail (certified or registered mail return receipt requested, postage prepaid); and (iv) upon confirmation of receipt by facsimile transmission. Any notice shall be addressed as follows: (a) if to ENHANCE: Enhance, Inc., 1207 4th Street Suite 400B, Santa Monica, CA 90401 (Attention: Legal); and (b) if to Publisher, at the address provided by Publisher to ENHANCE.
17.4 Compliance with Export and other Law. Publisher agrees to comply with all applicable export and import laws and regulations, including U.S. embargo and sanctions regulations and prohibitions on export for certain end users or to certain users. Publisher represents and warrants that Publisher is neither a Prohibited Person nor owned or controlled by a Prohibited Person. “Prohibited Persons” shall mean a person or entity appearing on the lists published on the Internet web site of the U.S. Department of Commerce, Bureau of Industry and Security, under the section “Lists to Check”) as amended from time to time, that is prohibited from acquiring ownership or control of items under these Terms, or with which Publisher is prohibited from doing business. Without limiting the forgoing, Publisher may not export or use the Platform (in whole or in part): (I) in any country where use is restricted by the United States government (currently including Afghanistan, Belarus, Cote d’Ivoire, Cuba, Democratic People’s Republic of Korea [North Korea], Eritrea, Guinea, Iran, Iraq, Lebanon, Liberia, Myanmar [Burma], Pakistan, Rwanda, Sierra Leone, Sudan, Syria, and Zimbabwe); (II) for the research, development or production of chemical, biological or nuclear weapons, or any missile programs; (III) pertaining to the design, development or implementation of any cryptographic components; and/or (IV) in the form of source code or pseudo-code, in any form.
17.5 Notice to U.S. Government End Users. The Platform is “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users: (a) only as Commercial Items; and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
17.6 Entire Agreement; Severability; and Waiver. These Terms, and any applicable Additional Terms, represent the entire agreement between the parties, and supersedes all prior agreements and understandings, with respect to the matters covered by these Terms. Publisher agrees that Publisher has not entered into these Terms based on any representations other than those contained in these Terms or any applicable Additional Terms. No modification of or amendment to these Terms, nor any waiver of any rights under these Terms, shall be effective unless in writing and signed by both parties. If any of the provisions of these Terms, or any applicable Additional Terms, are held by a court of competent jurisdiction to be invalid under any applicable statute or rule of law, such provision shall, to that extent, be deemed omitted, and the remaining portions shall remain in full force and effect. The waiver of a breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default. The headings are for convenience and will not be used to construe these Terms. In the event these Terms conflict with any terms and conditions affixed to or included in any invoice or purchase order, provided within an electronic fulfillment system or otherwise specified by Publisher, ENHANCE’s acceptance of Publisher’s order and delivery of the Platform is solely on the express understanding and condition that these Terms (and any applicable Additional Terms) contains the only terms and conditions that will apply to such order and ENHANCE hereby objects to and rejects any conflicting or additional terms and conditions, excepting only for Additional Terms that have been signed by an officer of ENHANCE. No provision of these Terms, or any Additional Terms, shall be construed against a party because it drafted that provision.