(Last revised: May 5, 2008)
Live Matrix provides a set of APIs and tools ("Third Party Developer Services") that allow any third party developer to build an application based on the Live Matrix Website, ("Site"). We are committed to protecting our users and our Site while enabling you to create applications, so we require you to abide by some specific terms. Please read the full terms of service below, as they govern your use of our Third Party Developer Services. Some examples of what's covered in our Terms of Service:
We do our absolute best to keep these services up and bug-free, but you use them at your own risk.
You own your application, and you're responsible for developing, operating, maintaining, and supporting it. You're also responsible for any content you show as a part of your application.
You can't use these services for anything that infringes on anyone's rights or intellectual property, generates spam, phishes, or is illegal.
If your application allows file-sharing, you must adopt and implement an acceptable copyright policy, register an agent with the Copyright Office, and take any and all other steps necessary to ensure you are in compliance with the Digital Millennium Copyright Act.
You must be honest and accurate about what your application does and how it uses information from users. Your application cannot falsely represent itself.
You can talk to the press and your users about your application, so long as you do so truthfully and without implying that your application is created or endorsed by Live Matrix (or otherwise embellishing your relationship with Live Matrix). However, you must get written consent from us before releasing any formal press releases.
TERMS OF SERVICE
The terms and conditions set forth below (this "Agreement") govern your use of the Live Matrix Third Party Developer Services. If you are an individual acting as a representative of a corporation or other legal entity that wishes to use Live Matrix Third Party Developer Services, then you represent and agree that you enter into this Agreement on behalf of such entity, and that all provisions of this Agreement will bind that entity as if it were named in this Agreement in place of you. BY ACCEPTING THESE TERMS AND CONDITIONS, OR BY USING OR ACCESSING ANY PORTION OF THE LIVE MATRIX THIRD PARTY DEVELOPER SERVICES, YOU IRREVOCABLY AGREE TO THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE ALL AUTHORITY NECESSARY TO BIND YOURSELF (AND, IF YOU ARE EMPLOYED BY OR OTHERWISE REPRESENT ANY CORPORATION OR OTHER LEGAL ENTITY THAT WISHES TO USE THE LIVE MATRIX THIRD PARTY DEVELOPER SERVICES, THAT ENTITY) TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE LIVE MATRIX THIRD PARTY DEVELOPER SERVICES.
Section 1. Conditions of Use
Your use of Live Matrix' Third Party Developer Services is subject to this Agreement, and also to Live Matrix' Terms of Service, which is incorporated into this Agreement by this reference.
A. Certain General Requirements. Subject to the terms of this Agreement:
1) You may create third party applications through the use of Live Matrix' Third Party Developer Services ("Live Matrix Applications");
2) Your Live Matrix Applications may be accessed from the Live Matrix Site;
3) You will at all times comply:
(a) with all applicable local, state, national, and international laws and regulations, including, without limitation all applicable export control laws and regulations and country-specific economic sanctions implemented by the United States Office of Foreign Assets Control in connection with your use of Live Matrix' Third Party Developer Services,
(b) obtain and maintain all licenses, permits and other permissions necessary in connection with Live Matrix Applications, and
(c) if your Live Matrix Application involves payments from Live Matrix' users or payment or account information, comply with all rules and regulations of any applicable payment network or association (e.g., Visa, MasterCard, Star, Plus), including, without limitation, the Payment Card Industry Data Security Standard;
4) You will not use Live Matrix' Third Party Developer Services or any of your Live Matrix Applications, and your Live Matrix Application will not be designed:
(i) in a manner that infringes, violates or misappropriates any third party's intellectual property rights or other proprietary rights or that is misleading, deceptive or fraudulent;
(ii) in a manner that is misleading, deceptive or fraudulent;
(iii) to engage in spamming or other advertising or marketing activities that violate any applicable laws, regulations or generally-accepted advertising industry guidelines;
(iv) in a manner that is fraudulent or otherwise illegal or promotes illegal activities, including without limitation engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
(v) in any manner that might be libelous or defamatory, or in a way that is otherwise malicious or harmful to any person or entity, or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age;
(vi) to request, collect, solicit or otherwise obtain access to usernames, passwords or other authentication credentials from any Live Matrix users, or to proxy authentication credentials for any Live Matrix users for the purposes of automating logins to the Live Matrix Site;
(vii) to impersonate any person, or to obtain access to the Live Matrix Site without authorization;
(viii) to enable you to personally identify any Live Matrix user except with their express consent;
(ix) for the primary purpose of facilitating the distribution of copyrighted content without the authorization of the copyright holder;
6) You may not interfere or attempt to interfere in any manner with the functionality or proper working of the Live Matrix Site or Live Matrix' Third Party Developer Services, or any portion or feature of either;
7) You will provide any information and/or other materials related to your Live Matrix Applications reasonably requested by Live Matrix from time to time to verify your compliance with this Agreement. If any of your Live Matrix Applications are available online, you acknowledge and agree that Live Matrix may crawl or otherwise monitor your Live Matrix Applications for the purpose of verifying your compliance with this Agreement, and that you will not seek to block or otherwise interfere with such crawling or monitoring (and that we and/or our affiliates or agents may use technical means to overcome any methods used on your Live Matrix Applications to block or interfere with such crawling or monitoring);
8) You will not, in any terms of service or license agreement applicable to any of your Live Matrix Applications, or otherwise, impose or purport to impose any obligation on any person, or grant or purport to grant any right, power or authority to yourself or any other person, that would be inconsistent with this Agreement, and you agree that any such obligation, right, power or authority purportedly imposed or granted shall be null and void ab initio.
B. Presentation and Distribution
1) You may not remove, obscure, or alter any notice of patent, copyright, trademark or other proprietary right appearing on or contained within Live Matrix' Third Party Developer Services.
3) If any of your Live Matrix Applications are designed to be presented in a "frame" or to be "embedded" into any page of the Live Matrix Site (e.g., via FBML), or you otherwise consent to any similar presentation, you grant Live Matrix the right to (a) link to your Live Matrix Applications (and any content provided through your Live Matrix Application) and (b) "frame" or otherwise display and permit third parties to display navigational elements and content (including, without limitation, advertising and promotional content) in conjunction with your Live Matrix Applications and any related content displayed on or linked to from the Live Matrix Site.
C. Confidential Information
The term "Live Matrix Confidential Information" means any information of or relating to Live Matrix that becomes known to you through disclosure, observation or otherwise, and that either is designated as confidential by Live Matrix or that is not generally known or readily ascertainable to the public, including, without limitation, nonpublic information regarding Live Matrix' Third Party Developer Services and Live Matrix' products, services, programs, features, data, techniques, technology, code, ideas, inventions, research, testing, methods, procedures, know-how, trade secrets, business and financial information and other activities. All Live Matrix Confidential Information remains the property of Live Matrix, and no license or other right in any Live Matrix Confidential Information is granted hereby. You will not disclose any Live Matrix Confidential Information to any third party, and will take all reasonable precautions to prevent its unauthorized dissemination, both during and after the term of this Agreement. If you are a corporate entity, you will limit your internal distribution of Live Matrix Confidential Information to your employees and agents who have a need to know, and will take steps to ensure that dissemination is so limited. You will not use any Live Matrix Confidential Information for the benefit of anyone other than Live Matrix. Upon Live Matrix' written request, you will destroy or return to Live Matrix all Live Matrix Confidential Information in your custody or control. In addition to the terms of this provision, you and Live Matrix will continue to be subject to any non-disclosure agreement that you and Live Matrix have entered into separately. This provision will survive any termination of this Agreement.
D. Copyright Complaints; Repeat Infringer Policy
You agree to take whatever actions are necessary or are requested by Live Matrix to enable us to comply with our policies relating to notices of copyright infringement, and the take-down and other provisions of the Digital Millennium Copyright Act ("DMCA") or other applicable laws and regulations with respect to your Live Matrix Applications. In addition, you acknowledge that in accordance with the DMCA and other applicable law, Live Matrix has adopted a policy of terminating, in appropriate circumstances and at our sole discretion, users and developers who are deemed to be repeat infringers, and that you agree that you will, if requested by us, take reasonable steps to terminate access to your Live Matrix Application for any user who we identify to you as a repeat infringer.
E. Customer Service.
You agree to provide Live Matrix with an e-mail address to which inquiries from Live Matrix users regarding your Live Matrix Application may be directed. You acknowledge and agree that you are solely responsible for providing all support and other information regarding your Live Matrix Application to Live Matrix users.
F. Specific Requirements for Certain Live Matrix Applications that Permit Sharing of Content
This Section F. applies only to Live Matrix Applications that permit a Live Matrix user to download, view, listen to and/or otherwise access any content via a Live Matrix Application owned by a third party and made available by another Live Matrix user. If your Live Matrix Application falls into this category, you agree that you will:
1) Host a page containing either a policy consistent with Live Matrix' policies regarding copyright protection (with your name and contact information filled in), or another policy that imposes at least the same requirements on you and that we approve in writing (a "Developer Copyright Policy");
2) Include a prominent link to your Developer Copyright Policy on each page of your Live Matrix Application or other feature of your Live Matrix Application (such as a profile box) through which Live Matrix users can view, hear or otherwise access content owned by a third party and made available by another Live Matrix user, with the link being entitled "Report Infringing Content" or words to the same effect.
3) Register a Designated Agent to receive notices of claimed infringement with the U.S. Copyright Office. To register a Designated Agent, you must fill out the form located here: http://www.copyright.gov/onlinesp/agent.pdf. You may either fill out the form online and print it out, or print out the blank form and fill it in by hand. After you have completed the form, you must mail it, together with a check for the appropriate amount made out to the "Register of Copyrights" to the following address: Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024.
4) Conscientiously follow your Developer Copyright Policy.
5) Include the following statement reasonably prominently on each page of your Live Matrix Application (or other interface provided by your Live Matrix Application) through which Live Matrix users can upload or otherwise make content owned by a third party available:
"By making any content available through this application, you represent and warrant that you own all rights necessary to properly do so."
6) Without limitation of your obligations under this Section 1.F or the Developer Copyright Policy, you agree that you will:
(a) expeditiously (and in any event in no more than 48 hours) disable access to any content available via a Live Matrix Application for which you receive a notice of claimed infringement that includes the information described in your Developer Copyright Policy, or as to which you otherwise have knowledge that it is infringing;
(b) promptly (and in any event in no more than 48 hours) follow up with anyone who submits a notice of claimed infringement that does not include all of that information, but who provides you with contact information, to ask them to provide any missing information; and
(c) promptly (and in any event in no more than 48 hours) terminate access to your Live Matrix Application for any Live Matrix users who are found to be repeat infringers.
Section 2. Fees
We reserve the right to charge a fee for using Live Matrix' Third Party Developer Services and/or any individual features thereof at any time in our sole discretion. If we do charge a fee for using Live Matrix' Third Party Developer Services or any feature thereof you do not have any obligation to continue to use Live Matrix' Third Party Developer Services or the applicable feature. However, if you do: (i) we reserve the right to specify the manner in which the fee will be calculated, the terms on which you will be invoiced and charged and the terms of payment; and (ii) any and all fees payable by you pursuant to this Agreement are expressed exclusive of all taxes and duties, including Value Added Tax ("VAT") or any similar applicable sales tax. In addition to such fees payable, you will pay any sales, use, value-added or import taxes, customs duties or similar taxes that may be assessed by any state and/or jurisdiction (collectively, "Taxes") that Live Matrix is legally required to charge on the applicable fees under this Agreement. If requested to do so by Live Matrix, or as otherwise required by applicable law, you will supply your VAT identification number to Live Matrix. We may also change the fees or fee structure for Live Matrix' Third Party Developer Services or any feature thereof at any time in our sole discretion, and in such event your continued use of Live Matrix' Third Party Developer Services or such feature constitutes your agreement to such change (provided, that you will not have any obligation to continue to use Live Matrix' Third Party Developer Services or such feature).
Section 3. Ownership and Licenses
As between you and Live Matrix: (a) you retain all right, title and interest in and to, and Live Matrix obtains no rights of any kind (other than the rights and licenses expressly granted in this Agreement) in, Live Matrix Applications you create and in any content contained in the Live Matrix Application, and all associated Intellectual Property Rights (subject to Live Matrix' underlying rights in Live Matrix' Third Party Developer Services and Live Matrix Site); and (b) Live Matrix retains all right, title and interest in and to, and you obtain no rights of any kind (other than the rights and licenses expressly granted in this Agreement) in, Live Matrix' Third Party Developer Services, the Live Matrix Site, any derivative works of any of them, and all associated Intellectual Property Rights.
You are granted a limited, nonexclusive, revocable license, during the term of this Agreement, to access Live Matrix' Third Party Developer Services solely as necessary to run Live Matrix Applications that meet all the requirements and conditions set forth in this Agreement. Live Matrix has the right at any time in its sole discretion, and immediately upon notice, to terminate the foregoing licenses and any other licenses and rights granted in this Agreement, and you will promptly comply with any such request. ALL RIGHTS NOT EXPRESSLY GRANTED IN THIS AGREEMENT ARE HEREBY RESERVED BY LIVE MATRIX AND ITS RESPECTIVE LICENSORS.
By accessing Live Matrix' Third Party Developer Services, or submitting any Live Matrix Application to us to be hosted by us, you are directing us to store copies of that Live Matrix Application (if applicable) and any and all content provided through any Live Matrix Application on our servers. You hereby grant us a worldwide, perpetual, irrevocable, non-exclusive right and license, with the right to sublicense, to: (a) access, reproduce, display, distribute, perform, and store on our servers your Live Matrix Application and any related content, and to create derivative works of such content, as may be necessary or desirable to make such Live Matrix Application and related content available to Live Matrix users in accordance with the terms of this Agreement; and (b) otherwise access, use and analyze any content provided through any Live Matrix Application for our internal business purposes. You understand and agree that content that is displayed on the Live Matrix Site via a Live Matrix Application may continue to appear on the Live Matrix Site, even after you have terminated access to your Live Matrix Application or terminated this Agreement.
You understand and acknowledge that Live Matrix may be independently creating Applications, content and other products or services that may be similar to your Live Matrix Applications and related content, and nothing in this Agreement will be construed as restricting or preventing Live Matrix from creating and fully exploiting such Applications, content and other items, without any obligation to you. You may from time to time elect, in your sole discretion, to provide suggestions, comments, improvements, ideas or other feedback or materials to us related to Live Matrix' Third Party Developer Services or Live Matrix Site (collectively, "Feedback"). If you elect to provide us any such Feedback, you assign and agree to assign all right, title and interest in and to such Feedback to us, and acknowledge that we will be entitled to use, implement and exploit any such Feedback in any manner without restriction, and without any obligation of confidentiality, attribution or compensation or other duty to account. You agree to promptly take such actions as Live Matrix may reasonably request from time to time (including execution of affidavits and other documents) to effect, perfect or confirm Live Matrix' ownership rights as set forth in this Agreement.
Section 4. Certain Developer Obligations, Representations and Warranties
A) You acknowledge that you are solely responsible for, and that Live Matrix has no responsibility or liability of any kind for, the development, operation, and maintenance of your Live Matrix Applications and for all related content or other materials that appear on or within your Live Matrix Applications. For example, you will be solely responsible for:
the technical operation of your Live Matrix Applications and all related equipment;
creating and displaying information and content on, through or within your Live Matrix Applications;
the accuracy and appropriateness of your Live Matrix Applications and related content or other materials available on, through or within your Live Matrix Applications;
ensuring that your Live Matrix Applications and related content and/or other materials available on, through or within your Live Matrix Applications do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights);
ensuring that any content available through your Live Matrix Application and other materials available on, through or within your Live Matrix Applications are not libelous or otherwise illegal;
any claims relating to any of your Live Matrix Applications or any related content by users or other third parties.
B) You represent, warrant and covenant to us that:
(1) you have all rights necessary to properly grant us all of the rights and licenses set forth in Section 3 above and elsewhere in this Agreement without violating the rights of any third party,
(2) your Live Matrix Applications and related content, and the use thereof by Live Matrix and Live Matrix users do not and will not violate, misappropriate or infringe the rights of any person or entity including any contract rights or any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person or entity,
(3) you do now, and at all times you provide a Live Matrix Application will: (a) comply with all applicable local, state, national and international laws and regulations, including, without limitation, all applicable export control laws and regulations and country-specific economic sanctions implemented by the United States Office of Foreign Assets Control in connection with your use of Live Matrix' Third Party Developer Services, (b) maintain all licenses, permits and other permissions necessary in connection with the Live Matrix Application, and (c) if your Live Matrix Application does or will involve payments from Live Matrix users or payment or account information, comply with all rules and regulations of any applicable payment network or association (e.g., Visa, MasterCard, Star, Plus), including, without limitation, the Payment Card Industry Data Security Standard;
(4) our downloading or accessing of any Live Matrix Application and related content from third party servers or other third party sources as directed by you or your Live Matrix Application does not and will not violate any contractual or legal obligation imposed on us or you (e.g., any prohibition on downloading or accessing content or using content for commercial purposes that may be contained in the "Terms of Service" or similar terms applicable to any website from which you or your Live Matrix Application direct us to download or access any content);
(5) content available through the Live Matrix Application will not be obscene, defamatory, fraudulent or otherwise illegal in any jurisdiction and will otherwise comply with all user conduct and user content rules set forth in Live Matrix' Terms of Service;
(6) neither your Live Matrix Applications nor any related content contains or will contain any virus, worm, Trojan horse, adware, spyware or other malicious code.
(7) your Live Matrix Application and related content will at all times comply with the terms of this Agreement, and any other policies or guidelines referenced in this Agreement or on the Live Matrix Site; and
(8) you will provide Live Matrix with information about a particular Live Matrix user of your Live Matrix Application if Live Matrix reasonably believes that such information is necessary to prevent or investigate the commission of a crime.
Section 5. Publicity; Trademark Usage
A) You and we may generally publicize your use of Live Matrix' Third Party Developer Services; provided, however, that you may not issue or consent to any press release (including to the Internet press, e.g., any blogs) with respect to Live Matrix' Third Party Developer Services or this Agreement without our prior written consent. Live Matrix may, at any time in its sole discretion, prepare and issue press releases, statements, and promotional and other materials mentioning and/or describing Live Matrix Applications you have created using Live Matrix' Third Party Developer Services, identifying you as the developer of such Live Matrix Applications, and otherwise describing the relationship between you and Live Matrix.
B) You may state that any of your Live Matrix Applications that comply with the terms of this Agreement are "built on Live Matrix' Third Party Developer Services".
C) We may make available to you certain graphic images, trademarks, trade names, service marks or logos owned or licensed by Live Matrix or its affiliates ("Marks") that you may use solely for the purpose of indicating that your Live Matrix Applications were created to interface with Live Matrix' Third Party Developer Services. You may not use the Marks (a) in a trademark manner or to suggest that Live Matrix is associated with, endorses, sponsors or has any other connection to any of your Live Matrix Applications other than the fact that it was created to interface with Live Matrix' Third Party Developer Services; or (b) in any manner that disparages Live Matrix, its affiliates or its licensors, or that otherwise dilutes or tarnishes the Marks.
You may not use the term "Live Matrix" as any part of the name of your Live Matrix Application, including without limitation "Live Matrix [application name]", "[application name] on Live Matrix," or "[application name] for Live Matrix." Further, you may not use the term "Live Matrix", or variations or misspellings of Live Matrix, in the name of a URL to the left of the top-level domain name (e.g., ".com", ".net", ".uk", etc.) -- for example, URLs such as "livematrix.xxx.com", "livematrix-calendar.com ", or "livematrixprofiles.net" are expressly prohibited. Other than your limited right to use the Marks in a non-trademark manner as provided in this Agreement, you may not make any use of the Marks. Live Matrix and its licensors retain all right, title and interest in and to the Marks, and all goodwill arising out of any use of the Marks by you will inure to the sole benefit of Live Matrix. You will not at any time now or in the future challenge or assist others to challenge the validity of the Marks, or attempt to register confusingly similar trademarks, trade names, service marks or logos. You agree to follow any Trademark Guidelines established by Live Matrix with respect to your use of any Marks as those guidelines may change from time to time. You must immediately discontinue use of any Mark as specified by us at any time in writing. We may modify any Marks provided to you at any time, and upon notice, you will use only the modified Marks and not the old Marks.
D) All trade names, trademarks, service marks, logos, and trade dress on the Live Matrix Site are either trademarks or registered trademarks of Live Matrix or its licensors. Other than as specified in this Agreement, you may not copy, imitate or use any registered or unregistered trademark, service mark, trade name, logo, trade dress, URL or other business identifier of Live Matrix or third parties that advertise on the Live Matrix Site unless you obtain Live Matrix' and any applicable third party's prior written consent. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, or state or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement (including, without limitation, by stating or implying that Live Matrix or any third party that advertises on the Live Matrix Site supports, sponsors, endorses, or contributes money to you or your business endeavors).
E) You may not promote your Application as being intended or primarily useful for any unlawful activity.
Section 6. Beta Testing
From time to time Live Matrix may conduct open beta tests (each a "Beta") of new features or versions of Live Matrix' Third Party Developer Services (each a "Beta Product"). If you choose to register for a Beta, your participation is subject to the following additional terms:
You understand that the overall design of the Beta Product could change throughout the course of the Beta and that Live Matrix reserves the right to change or withdraw the Beta Product, discontinue the Beta, revoke your license to the Beta, or release the Beta Product as a final version at any time in its sole discretion.
You agree to record and report all problems, issues, ideas, feedback and suggestions for enhancements to the Beta Product ("Beta Test Results") to Live Matrix on a timely basis to the email address that will be provided to you along with the beta testing materials, and during the Beta period, you will not speak to the press (including Internet press, e.g., blogs) regarding the Beta or the Beta Product, without our prior written consent.
You hereby assign all right title and interest in and to any Beta Test Results to Live Matrix and/or its affiliates, as applicable, and acknowledge that Live Matrix and/or its affiliates have the unrestricted right to use and exploit such Beta Test Results in any manner, with or without attribution, and without compensation or any duty to account to you for such use.
You agree that any Live Matrix Applications you build and release based on the Beta Test Product during the Beta Test will be labeled as "beta".
Section 7. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
LIVE MATRIX' THIRD PARTY DEVELOPER SERVICES ARE PROVIDED BY LIVE MATRIX ON AN "AS IS", "AS AVAILABLE", AND "WITH ALL FAULTS, DEFECTS AND ERRORS" BASIS. LIVE MATRIX MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO LIVE MATRIX' THIRD PARTY DEVELOPER SERVICES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF LIVE MATRIX' THIRD PARTY DEVELOPER SERVICES IS AT YOUR SOLE RISK. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, LIVE MATRIX DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY IMPLIED WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. LIVE MATRIX DOES NOT WARRANT THAT LIVE MATRIX' THIRD PARTY DEVELOPER SERVICES ARE FREE OF VIRUSES, WORMS, TROJANS, SPYWARE OR OTHER HARMFUL COMPONENTS, OR THAT THEY WILL BE ACCESSIBLE ON A PERMANENT BASIS OR WITHOUT INTERRUPTION.
LIVE MATRIX WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF, OR INABILITY TO USE, LIVE MATRIX OR LIVE MATRIX' THIRD PARTY DEVELOPER SERVICES, FROM ANY TERMINATION OF THIS AGREEMENT OR YOUR ABILITY TO USE OR PARTICIPATE IN LIVE MATRIX' THIRD PARTY DEVELOPER SERVICES FOR ANY REASON, FROM DISABLING OR REMOVING ANY APPLICATIONS HOSTED BY LIVE MATRIX, OR FROM ANY USE OR MISUSE OF YOUR LIVE MATRIX APPLICATION OR RELATED CONTENT BY ANY LIVE MATRIX USER OR ANY OTHER THIRD PARTY, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST DATA, BUSINESS OR ANTICIPATED PROFITS, WHETHER OR NOT LIVE MATRIX WAS AWARE OF OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, AND SO SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU.
THIS LIMITATION OF LIABILITY DOES NOT APPLY TO LIMIT LIVE MATRIX' LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT ONLY THAT IT ARISES AS A RESULT OF THE NEGLIGENCE OR WILLFUL MISCONDUCT OF LIVE MATRIX OR OF ITS EMPLOYEES, AGENTS OR AUTHORIZED REPRESENTATIVES.
Section 8. Release and Indemnification
A) You hereby irrevocably and unconditionally release and covenant not to sue or pursue any other claim against Live Matrix, or any of its licensees, assigns or successors, for any and all damages, liabilities, causes of action, judgments, and claims: (i) pertaining to your Live Matrix Applications or related content, or any intellectual property you develop that is based on, uses, or relates to Live Matrix' Third Party Developer Services or any portion thereof; and/or (ii) which otherwise may arise in connection with your use of, reliance on, or reference to Live Matrix' Third Party Developer Services.
Section 9. Applicable Law; Venue
The laws of the State of California, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and Live Matrix or any of our affiliates related to the subject matter hereof. With respect to any disputes or claims not subject to arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts of California located in San Francisco County, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts of California located in Santa Clara County.
Section 10. Arbitration
YOU AND LIVE MATRIX AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THIS AGREEMENT, YOUR USE OF OR INABILITY TO USE LIVE MATRIX' THIRD PARTY DEVELOPER SERVICES, OR YOUR LIVE MATRIX APPLICATIONS AND ANY RELATED CONTENT SHALL BE CONFIDENTIAL, FINAL AND BINDING ARBITRATION IN SAN FRANCISCO, CALIFORNIA, except that, to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party's patent, copyright, trademark, trade secret rights or other intellectual property rights, or you have otherwise violated any provisions set forth in Section 1 ("Conditions of Use") above or any of the user conduct rules set forth in Live Matrix' Terms of Service, then the parties acknowledge that injunctive or other appropriate relief may be sought in any court of competent jurisdiction.
Arbitration under this Agreement shall be conducted by the American Arbitration Association (the "AAA"). The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction.
To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF LIVE MATRIX' THIRD PARTY DEVELOPER SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action or proceeding by you related in any way to Live Matrix' Third Party Developer Services, the Live Matrix Site, your Live Matrix Application and/or any related content be instituted more than three (3) years after the cause of action arose. The provisions of this Section 10 will control over any inconsistent provisions of the Live Matrix Terms of Service, solely in regard to disputes and claims of the types described above in this Section 10. The parties agree that each provision of this Section 10 is fundamental to this Agreement and that if any provision of this Section 10 is held to be invalid or unenforceable, the entire Section 10 shall be eliminated entirely.
Section 11. Termination
You may terminate this Agreement at any time by ceasing to use Live Matrix' Third Party Developer Services. You acknowledge and agree that Live Matrix may at any time in its sole discretion, without liability, with or without cause and with or without notice: (a) terminate this Agreement; (b) terminate or suspend your access to Live Matrix' Third Party Developer Services and/or the Live Matrix Site or any portion or feature of any of them; and/or (c) remove, block, delete or disable access to your Live Matrix Applications and/or any related content, including without limitation if we determine, in our sole discretion, that your Live Matrix Application or any related content is unsuitable for Live Matrix' Third Party Developer Services, the Live Matrix Site or Live Matrix' users. We further reserve the right, without liability, with or without notice and with or without cause, to discontinue Live Matrix' Third Party Developer Services and/or any portion or feature thereof for any reason and at any time in our sole discretion. Upon any termination or notice of any discontinuance, you must immediately stop your use of Live Matrix' Third Party Developer Services. Any accrued but unpaid payment obligations you may have hereunder and any definitions that are necessary to give effect to related provisions will survive any termination of this Agreement and will continue to bind you and us in accordance with those terms.
Section 12. Certain General Provisions
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the Live Matrix Site. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO STOP USING LIVE MATRIX' THIRD PARTY DEVELOPER SERVICES. YOUR CONTINUED USE OF LIVE MATRIX' THIRD PARTY DEVELOPER SERVICES FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE. No amendment or modification of this Agreement other than as provided above will be binding on Live Matrix unless set forth in a writing signed by an authorized representative of both parties. Except as specifically provided herein, if any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect and, upon Live Matrix' request, the court will construe any invalid or unenforceable portions in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement and the rest of the Agreement shall remain in full force and effect. The failure by Live Matrix to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of Live Matrix to enforce such provision thereafter. This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns. This Agreement (including Live Matrix' Terms of Service, as incorporated by reference herein), constitutes the entire agreement between you and Live Matrix regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement or communication between you and Live Matrix, whether written or oral, regarding such subject matter. Each of Live Matrix' affiliates are express and intended third party beneficiaries of this Agreement and may enforce any of its terms and exercise any of the rights to the same extent as Live Matrix. You and Live Matrix are independent contractors, and nothing in this Agreement is intended to or does create any type of joint venture, partnership or employer/employee relationship between you and Live Matrix or its affiliates. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall not be binding on the parties hereto. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
Section 13. Contact Information
If you have any questions regarding this Agreement or Live Matrix' Third Party Developer Services, please contact us at email@example.com.