Terms and Conditions

MYAPPSTUDIO.COM
TERMS OF USE

Last Revised:  01.Nov. 2010

INTRODUCTION AND BACKGROUND INFORMATION

Welcome to Liquid Air Lab’s (“LAL”) web site located at www.myappstudio.com (the “Website”) and/or a software application developed by LAL.  LAL develops software applications (“Apps”) primarily for use with smartphone devices (“Devices”), and has developed an application framework that allows rapid development of highly customized turn-key mobile applications (each a “Mobile App”) for Mobile Devices including into the app interactive content information from third-party social media websites or other content sources (“Media Sites”) or individual branding materials and content a user supplies, or both.  LAL may also from time to time offer various functionalities with respect to the distribution of Mobile Apps.  For example, LAL may submit on behalf of a Website user a Mobile App to various supported Device marketplaces such as an App Store (each, a “Marketplace”) operated by third parties (each, a “Distributor”) or to send a link for a Mobile App installer via e-mail or other messaging platforms or services (e.g., Twitter or Facebook) to another person so the recipient may install a version of a Mobile App on their Device without having to go through a Marketplace or a Distributor.  A Mobile App will allow end users to access Mobile App Content (defined below) from a Device through a 3G, 4G, WiFi, or other wireless data networks now known or hereafter developed, to the extent the Device has Internet connectivity.  The person or entity for whom a Mobile App is created is the “Author.”

LAL offers both a Premium App Development and Hosting Service (a “Premium Service”) and a free, advertising supported App Development and Hosting Service (“Free Service”).  For a Premium Service, LAL charges the Author a one-time setup fee and a monthly recurring subscription fee, for which, subject to these Terms, LAL will host content the Author uploads, develop the Mobile App as configured by the Author through the Website, submit the Author’s Mobile App to Marketplaces selected by the Author for approval by the applicable Distributors, and collect payments from Distributors if the Mobile App is sold for a fee to end users.  The Author of a Premium Service Mobile App controls whether a Mobile App is available for free for users or for a fee (e.g., $0.99) through a Marketplace, or is distributed directly to Users outside of a Marketplace (e.g., via e-mail) .  If an App is sold thru a marketplace for a fee, LAL shares with an Author a portion of the money LAL actually receives from the distribution of an Author’s Mobile App. 

For a Mobile App developed as part of the Free Service and distributed to end users for free, the Author can also configure  and customize the Mobile App through the Website, submit content for inclusion with the Mobile App or have the content pulled from Media Sites.  For all Mobile Apps developed as part of the Free Service, LAL reserves the right to insert advertising around, over, and before, during or after the display or transmission of content through such Mobile Apps.  LAL will not share with the Author of a Mobile App developed under the Free Service any of the advertising revenue generated from the usage of such Mobile App.  The services offered by LAL with respect to Premium Services and Free Services, including the deliver of content to an App, are referred to herein as the “Services.” 

1. ACCEPTANCE OF TERMS

These Terms of Use, including the Introduction and Background Information set forth above (the “Terms”), govern your use of the Website and the Services, whether you are an Author or a user of the Website or a user of a Mobile App (in all instances, a “User”).  For the avoidance of doubt, each Author is also a User.

PLEASE READ THESE TERMS CAREFULLY AS THEY CREATE A BINDING LEGAL CONTRACT BETWEEN YOU AND LAL.  BY ACCESSING THE WEBSITE OR USING THE SERVICES OR A MOBILE APP, IN ANY MANNER, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS, INCLUDING AS SUCH TERMS MAY BE AMENDED BY LAL FROM TIME TO TIME, IN ITS SOLE DISCRETION, AS SET FORTH BELOW.  IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, INCLUDING AS AMENDED OR SUPPLEMENTED BY LAL, THEN YOU MUST IMMEDIATELY TERMINATE YOUR USE OF THE WEBSITE, THE SERVICES OR MOBILE APPS.  IF YOU ARE AN AUTHOR AND TERMINATE THESE TERMS, THEN SUPPORT FOR ANY MOBILE APP YOU CREATED WILL CEASE UPON SUCH TERMINATION, MEANING CONTENT MAY NO LONGER BE MADE AVAILABLE THROUGH YOUR MOBILE APP. 

You may receive an additional copy of these Terms by e-mailing us at terms@myappstudio.com and identifying the subject line of the e-mail as “Terms of Use.”

2. ELIGIBILITY

You represent and warrant that you are at least the age of majority in the jurisdiction where you are located (which is 18 years of age in most locations in the United States) and fully able, competent and authorized to enter into and be bound by these Terms.  If you are using the Website, a Mobile APP or obtaining Services on behalf of a third party, company, entity or organization (collectively “Service Customer”), then you represent and warrant that you: (1) are an authorized representative of that Service Customer with the authority to bind the Service Customer to these Terms and (2) agree to be bound by these Terms on behalf of such Service Customer. 

NOTE TO CHILDREN UNDER 13 YEARS OF AGE:  THE WEBSITE, THE SERVICES AND MOBILE APPS ARE NOT FOR PERSONS UNDER THE AGE OF 13.If you are under 13 years of age, then you are not permitted to use any of the foregoing. 

3. ADDITONAL TERMS

 

3.1 Your privacy is important to LAL.  The MyAppStudio.com Privacy Policy www.myappstudio.com/privacypolicy-en.html is incorporated into these Terms by reference.  Please read the Privacy Policy carefully for details relating to the collection, use, and disclosure of information.

3.2           .  While using the Website, the Services or Mobile Apps, you will be subject to any additional posted rules and policies (“Guidelines”), including, without limitation, the MyAppStudio.com Objectionable Content Policy www.myappstudio.com/objectionablelcontentpolicy-en.html.  Any and all such Guidelines are hereby incorporated by reference.

4. MODIFICATION OF THE TERMS

LAL reserves the right, in its sole discretion, to change, modify, add, or remove portions of these Terms at any time and from time to time with or without specific notice to you other than through posting such modified Terms on the Website or through a Mobile App, or both.  The Terms will be identified as of the most recent date of revision and will be effective immediately upon posting unless otherwise specified herein.  Notwithstanding the preceding two sentences, a) in the event any such modification materially alters your rights hereunder, we will attempt to notify you directly through a message sent to the e-mail address you provided upon registration or a pop-up window when you log in to the Website or launch a Mobile App, b) such modified Terms will be effective upon the earlier of your use of the Website, the Services or a Mobile App (collectively, the “LAL Properties”) with actual knowledge of the changes or ten days after the changes are posted to the Website or a Mobile App, and c) no modifications to these Terms will apply to any dispute between you and LAL that arose prior to the date of such modification.  You hereby acknowledge and agree that you will check these Terms periodically for any changes.  Your use of the LAL Properties after the changes become effective constitutes your binding acceptance of such changes.  If you are dissatisfied with the LAL Properties, then you agree that your sole and exclusive remedy is to discontinue any use of the LAL Properties.

5. DESCRIPTION OF SERVICES; MOBILE APPS

5.1 LAL allows an Author to brand and customize a Mobile App using custom logos, trade names, trademarks, and service marks (“PersonalizedMarks”), as well as a variety of other content and materials the Author may upload or incorporate in the Mobile App, including, by way of example and not limitation, content obtained from Media Sites and text, images, artwork, sound recordings, musical works, and audiovisual works (collectively, “Mobile App Content”). 

5.2  

 

(a) For Authors electing a Premium Service, the Author will have the ability to review the then-applicable Service Fees (as defined below) before registering to the service.  www.myappstudio.com/pricing-en.html.  Upon clicking “Accept” for a Premium Service, LAL will prepare and submit your Mobile App to the Marketplaces you select for review and acceptance and, subject to approval, subsequent distribution through the Marketplaces, in a format and manner prescribed by each applicable Distributor.  LAL cannot guarantee acceptance of a Mobile App by any particular Distributor and makes no representation or warranty about the acceptance of a Mobile App for distribution through any Marketplace.  Authors of Mobile Apps created pursuant to Premium Services shall have the right to distribute Premium Service Mobile Apps for free outside of a Marketplace (e.g., distribution via e-mail), subject to any limitations offered by LAL and selected by the Author, if any.
(b) For Authors electing a Free Service, the App will be created upon the Author’s clicking “Accept.”  Once a Free Service has been accepted, the Author may distribute the Mobile App via e-mail link or such other method supported by LAL.  Recipients of a Mobile App via e-mail link or other method of distribution may further redistribute a Mobile App to make distribution viral. LAL is also allowed but not obligated to make marketing efforts to promote the apps in the channels that LAL decides to use.

 

5.3 As part of the process of having LAL create a Mobile App, Authors agree to provide LAL with the metadata it needs to submit a Mobile App to the Marketplaces, including, without limitation: (a) the title and version number of each Mobile App; (b) the countries in which the Author authorizes the Marketplaces to allow end-users to download the Mobile App; (c) any copyright or other intellectual property rights notices for the Mobile App; and (d) any other information requested by LAL and indicated as “required” in the particular data entry screen.  Different Marketplaces may support different metadata, and collection of specific metadata by LAL does not constitute a warranty that any such metadata will be used in conjunction with or applicable to any particular distribution of a Mobile App.

 

5.4 The Services enable Authors to upload or import Mobile App Content (including from Media Sites) into a Mobile App, and provide for the hosting, sharing, reproduction, distribution, creation of derivative works, transmission, public performance, public display, communication to the public, and other exploitation of Mobile App Content insider Mobile Apps to end Users of the Mobile Apps.  An Author must be a registered User of the Services and have paid all applicable fees in order to submit any Mobile App Content, and an Author .  Mobile App Content is displayed at the direction of an Author or Users and is not controlled by LAL.  Mobile App Content may not contain any Objectionable Content, as defined in the MyAppStudio Objectionable Content Policy www.myappstudio.com/objectionablecontentpolicy-en.html as that policy may be revised from time to time in LAL’s sole discretion.

5.5 LAL makes no representation that it will publish or make available on the Services or through a Mobile App any Mobile App Content or other content, and LAL and its designees reserve the right, in their sole discretion, to refuse to allow any Mobile App Content on a Mobile App or any other App, or to remove any Mobile App Content or other content at any time with or without notice or liability to an Author or any Users.  Without limiting the generality of the preceding sentence, LAL complies with the Digital Millennium Copyright Act, and will remove Mobile App Content upon receipt of a compliant takedown notice (see “Digital Millennium Copyright Act” below).  Upon termination of this Agreement between an Author or User, on the one hand, and LAL, on the other hand, for any reason, including nonpayment of applicable fees, Mobile App Content may no longer be available to Users that have already downloaded and installed a Mobile App, even if such Users paid for such Mobile App.  In such cases, the Mobile App may still be resident on a User’s Device but no Mobile App Content will be transmitted to or through such Mobile App.

5.6 In addition to Authors, other Users may be permitted to upload content to the Website or another person’s Mobile App.  By submitting Mobile App Content or any other content to LAL, an Author or a User, as the case may be, hereby grants LAL and its affiliates, sublicensees, partners, designees, and assignees of the Service (collectively, the “LAL Licensees”) a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, and transferable license, throughout the universe, to use, reproduce (including by making mechanical reproductions), distribute, modify, adapt, prepare derivative works of (including synchronized uses), publicly display, publicly perform, communicate to the public, and otherwise utilize and exploit Mobile App Content and any other content and derivatives thereof:

 

(a) in connection with Mobile Apps distributed through the Author’s selected Marketplaces or via e-mail or other supported distribution methods;
(b) for marketing, promoting, and redistributing a Mobile App in any media formats and through any media channels, whether now known or hereafter discovered or developed;
(c) for any uses permitted by the functionality of the Website or any Mobile Apps; and
(d) in a directory or collection of content and/or Apps, aggregated with content and/or Apps provided by LAL and/or other Users. You further agree to irrevocably waive (and cause to be waived) any claims and assertions of rights of attribution or integrity or any other so-called “moral rights” with respect to your Mobile App Content or any other content, as the case may be.  In addition, each Author hereby authorizes LAL to incorporate the Author’s Mobile App into any directories of Mobile Apps, as made available through any media or technology now known or hereafter developed, for free or for a fee, without the need for LAL to share any portion of any fees with you for the sale or other exploitation of the directory.

5.7 You grant the LAL Licensees the right to use your name, likeness, Personalized Marks, screenshots of your Mobile Apps (if you are an Author), and Mobile App Content, in any way they should choose, without compensation or need for your prior approval, in the exercise of any of the rights licensed by you hereunder.  By accepting Services for a Mobile App, you hereby grant LAL a non-exclusive, perpetual license to print, publish, broadcast and use, worldwide, your Mobile App, any design, pages and features of such Mobile App, and your name, image, and likeness, for promoting, marketing, and advertising the Website, the Services, LAL, and Mobile Apps, without any additional compensation to you, in any and all media now known or hereafter developed.

5.8 Each User who uploads any content (including Mobile App Content) to the Website or for use with any Mobile App is solely responsible for such content and the consequences of posting or publishing such content to the Website or any Mobile Apps.  By uploading any content (including Mobile App Content) to the Website or for use with any Mobile App, you affirm, covenant, represent, and warrant that:
(a) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize the LAL Licensees to use all copyright, trademark, patent, or other proprietary rights in and to any and all Mobile App Content and other content to enable the use and exploitation of such Mobile App Content or other content in all manner contemplated by these Terms, and to grant the rights and license set forth above (including, but not limited to, all rights necessary for the use of any musical works, sound recordings, audiovisual works, movies, photographs, text, or other works embodied in any Mobile App Content or other content;
(b) Mobile App Content and other content will not contain any viruses, worms, spyware, adware or other malicious or harmful code of any kind; and
(c) Mobile App Content and other content and the use of Mobile App Content and other content by any LAL Licensee pursuant to these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
(ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person;
(iii) violate any applicable law or regulation; or
(iv) require obtaining a license from or paying royalties to any third party for the exercise of any rights granted in these Terms, including, by way of example and not limitation, the payment of any royalties to any record company or other sound recording copyright owner, so-called mechanical or synchronization royalties to any music publishers or other musical work copyright owners, or any public performance or communication to the public royalties (whether directly to any rights holder or to any performing rights organization such as ASCAP, BMI, SESAC, and similar organizations throughout the world), or any payments of any kind to any featured or non-featured vocalists or musicians, unions, guilds, producers, engineers, or any other entity that has rights in or to any portion of Mobile App Content or other content.  For the avoidance of doubt, each Author of Mobile App Content or User who uploads other content to the Website or any Mobile App and not LAL is solely responsible for clearing all rights to any sound recordings, musical works, audiovisual works, movies, literary works, or any other works subject to copyright or similar protection included in the User’s Mobile App Content or other content.

5.9 LAL may provide Users with access to various types of “link codes” and “embeddable widgets”, consisting of snippets of HTML code that enable the User to link directly to a Mobile App through other web sites (“Widgets”).  A User may embed Widgets on web sites solely as provided to you by LAL and without modification of any kind, and in accordance with any applicable additional posted guidelines or restrictions.  With the sole exception of the snippet of HTML code provided to you by LAL for inclusion on your website, you may not reproduce or distribute any LAL materials (including, without limitation, any image or other file) on any other website.  You understand and agree that your rights with respect to what materials you may incorporate into third party services are governed by separate terms, which may prohibit the use of Widgets.  It is solely your responsibility to determine whether such use is permitted by a particular third party provider.

5.10 Certain Mobile Apps are designed to work in conjunction with Media Sites and to permit an Author to import into a Mobile App the Author’s public information as made available on a Media Site.  An Author will have to grant LAL permission to import public information from a Media Site before such content may be imported into a Mobile App.  Once authorized, importations will occur automatically and appear within a Mobile App as such App is refreshed.  An Author is solely responsible for any content imported into a Mobile App from any Media Site, and LAL has no liability or responsibility with respect to such imported content.  An Author may terminate the importation of content from a Media Site into a Mobile App by terminating the grant of permission or otherwise complying with the terms of the Media Site from which such content is obtained.  An Author may also terminate this Agreement through notification to LAL at support@myappstudio.com.

6. REVENUE SHARING FOR PAID APPS – HOW AN AUTHOR GETS PAID

6.1 LAL shares with an Author a portion of the revenues generated by Distributors and received by LAL from the distribution of the Author’s Mobile App created pursuant to Premium Services and for which the Author has established a fee for distribution through Marketplaces.  Each Author of a Premium Service Mobile App has the ability to select the price at which such Author’s Mobile App is offered through Marketplaces, subject to the pricing policies established for such Marketplaces by the Distributors (which policies may allow a price of zero dollars; i.e., free distribution).  If an Author is distributing a Premium Service Mobile App through one or more Marketplaces, the Author must elect the pricing for such Mobile App at the time the Author accepts the Services, subject to adjustment as permitted by LAL and/or Marketplaces from time to time.

6.2 Where an Author distributes a Premium Service Mobile App through Marketplaces, LAL will seek to collect the portion of the revenues allocable by the Distributor for such distribution, which portion is net of the commissions charged by the Distributor (“Net Distribution Amount”).  LAL will remit to the Author eighty percent (80%) of the Net Distribution Amounts actually received by LAL from Distributors of the Author’s Premium Service Mobile Apps (the “Author Fees”).  LAL shall have no obligation to bring any action against a Distributor for payment of the Net Distribution Amount to LAL.

6.3 LAL will account for Author Fees on a cash basis, recording Author Fees in the Accounting Period (defined below) in which they are received from a Distributor.  Within sixty (60) days following the end of each Accounting Period, LAL will distribute Author Fees received during the just-ended Accounting Period, according to the provisions of these Terms.

6.4 Payments made by LAL will be made in U.S. Dollars.  Payment may be remitted via PayPal, wire transfer or check, at LAL’s option.  At a minimum, an Author must provide LAL with a physical mailing address and wire transfer instructions or a PayPal account.  An Author is responsible for keeping such information current with LAL for so long as a Premium Service Mobile App is available for sale through any Marketplace and for six (6) months following the removal of a Premium Service Mobile App from all Marketplaces.  Each Author acknowledges and agrees that PayPal or the Author’s bank or financial institution may deduct a fee for the receipt of an electronic or wire transfer, taxes and other expenses, and such fee will be deducted from the Author Fees (i.e., payments from LAL may be reduced by a fee levied by the Author’s bank). 

6.5 The Accounting Periods are the four calendar quarters:  January – March, April – June, July – September, and October – December.

6.6  LAL will distribute Author Fees when the Author’s account balance equals or exceeds Fifty Dollars U.S. (US $50) (the “Minimum Balance”).  When an account balance is less than the Minimum Balance, LAL will roll over such funds to subsequent Accounting Periods until such time as the Minimum Balance is reached, at which time the account balance will be paid out pursuant to Section 6.3 of these Terms.  LAL reserves the right to deduct from an Author’s Author Fees any amounts the Author may owe to LAL, and reduce the account balance accordingly.

6.7 LAL will provide Authors distributing Premium Service Mobile Apps for a fee with access to a password-protected web page on the Website, web site maintenance and other general web site unavailability excepted, whereby the Author will be permitted to track Author Fees.  No other reports will be required to be sent to an Author by LAL.

6.8 An Author electing a Paid App covenants that it will provide LAL with all tax documentation LAL may request or require in order to remit payment to such Author.  An Author agrees that LAL will not have to pay such Author any Author Fees pending LAL’s receipt of requested tax documentation, notwithstanding the Author’s Minimum Balance.

7. FEES FOR SERVICES – HOW AUTHORS PAY LAL

7.1 By subscribing to a Premium Service through the Website and clicking Accept for the provisioning of the Services, you (an Author) agree to pay LAL the amounts set forth on the Website page at the time you click Accept, including an initial one time setup fee (the “Setup Fee”) and a monthly recurring subscription fee for each full or partial month for which you subscribe to the Service (the “Subscription Fee”).  The Setup Fee and the Subscription Fee are, collectively, the “Service Fees”.

7.2 There are no Service Fees for Authors electing Free Services.

7.3 The Setup Fee for a Premium Service and the first month's subscription fee will be charged to an Author’s PayPal account at the time the Author orders a Premium Service Mobile App subscription plan.  LAL will thereafter charge the Author’s PayPal account for Subscription Fees every month on or around the first business day of each calendar month, if the plan has not been terminated.  If you (an Author) fail to pay any applicable Service Fees when due, then you may be subject to late fees assessed by PayPal provider.  LAL reserves the right to immediately terminate all Services provided with respect to a Premium Service Mobile App if any Services Fees for such Mobile App are rejected by PayPal or any credit card provider.

7.4 All Service Fees are non-refundable.

7.5 LAL reserves the right to modify Service Fees on a prospective basis, including offering certain features to some or all users at discounted rates or free of charge, without liability to you.  In the case of the Subscription Fee, LAL will you (if you are an Author) with thirty (30) day’s advance notice prior to any change in such Subscription Fee, via e-mail to the address you provided upon registration or thereafter.  If you do not wish to continue a subscription at any new rates adopted by LAL, your sole remedy is to terminate your subscription with respect to your Premium Service Mobile App.

8. OWNERSHIP; PROPRIETARY RIGHTS

8.1  The Website and the Services are owned and operated by LAL.  The content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Website and the Services that are provided by LAL, including Mobile Apps (the “LAL Materials”), are protected by copyright, trade dress, patent, and trademark laws of Germany and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws.  LAL Materials do not include Personalized Marks or Mobile App Content.  All LAL Materials are the property of LAL or its subsidiaries or affiliated companies and/or third-party licensors.  All trademarks, service marks, and trade names contained in the LAL Materials are proprietary to LAL or its affiliates and/or third-party licensors.  Except as expressly authorized by LAL, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the LAL Materials.  LAL reserves all rights not expressly granted in these Terms.  You shall not acquire any right, title or interest to the LAL Materials, except for the limited rights set forth in these Terms.  LAL claims no ownership in or to any content or other materials provided by or obtained from Media Sites.

8.2 A User retains all of the User’s ownership rights in original aspects of Mobile App Content or other content, subject to LAL’s or any third-party’s underlying rights in any LAL Materials or third-party content embodied within any Mobile App Content or other content a User submits or uploads or otherwise makes available through a Mobile App or the Website.

 

9.  LICENSE TO PERSONALIZED MARKS

If you (as an Author) upload Personalized Marks to the Website and accepts the Services, you hereby grant LAL a limited, non-sublicenseable, irrevocable, royalty free license for so long as your Mobile App is made available through the Services or for which Mobile App Content is made available through the Mobile App, to display your Personalized Marks on the Website and to use your Personalized Marks solely with respect to marketing and advertising the Website, your Mobile App, and the Services, including in print, television, via the Internet, and through any other distribution channels or media now known or hereafter developed or created.  LAL’s use of Personalized Marks is subject to the following conditions:  (1) it will keep intact any proprietary notices of the Author; (2) it will comply with the Author’s trademark use guidelines as provided to LAL in advance in writing; (3) it acknowledges that all goodwill generated through its use of Personalized Marks will inure to the benefit of the Author of such Personalized Marks; and (4) it hereby assigns and agrees to assign to the Author any and all goodwill generated through its use of the Personalized Marks, without any payment or other consideration to it, and further agrees to take all actions necessary to effect such assignment.

10.           CONTENT DISCLAIMER AND WARNINGS

 

10.1 You understand that when using the Website or any Mobile App you may be exposed to content from a variety of sources, including, but not limited to, Mobile App Content of individual Authors (“Third-Party Content”), and that LAL is not responsible for the accuracy, integrity, quality, legality, usefulness, safety, or intellectual property rights of or relating to such Third-Party Content.  You further understand and acknowledge that you may be exposed to Third-Party Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against LAL with respect thereto.  LAL does not endorse any Third-Party Content on any App, including Third-Party Content in Mobile App Content.  Under no circumstances will LAL be liable in any way for or in connection with any Third-Party Content, including, but not limited to, for any inaccuracies, errors or omissions in any Third-Party Content, any intellectual property infringement with regard to any Third-Party Content, or for any loss or damage of any kind incurred as a result of the use of any Third-Party Content posted, electronically mailed or otherwise displayed or transmitted through the Website or a Mobile App.

10.2  You are solely responsible for your use of the Website, the Services, and Mobile Apps, and you should use common sense and exercise good judgment when making choices concerning such use.  Without limiting the generality of the preceding sentence, the following are some examples of particular considerations you should keep in mind:
(a) activities that involve prolonged screen viewing time may lead to eye strain;
(b) you should never use the Website, the Services or a Mobile App while driving a motor vehicle or operating other equipment or machinery, or while engaging in other activities that require focused attention to accomplish safely; and
(c) you should consult a doctor if experiencing any adverse medical symptoms while using any of the foregoing, including, but not limited to, any repetitive stress injuries.

10.3 Users of the Services and, in particular, Authors incorporating personal information from a Media Site or elsewhere in a Mobile App, should be judicious and act responsibly and carefully before disclosing one’s personal information to others on the Internet, including personal information that may disclose your identity, residential address, place of employment or school, and current location.  Disclosing personal information in a Mobile App or via any Media Sites may expose you to or increase your risk of identity theft, cyber stalking, cyber bullying, spamming, financial scams, and other dangers, including, but not limited to, physical injury.  Scam artists, sexual predators, and other criminal elements often exploit the anonymity that the Internet can provide to victimize unsuspecting or overly trusting individuals.  You should be circumspect in the information you disclose or transmit to other Users of the Website or via your Mobile App or Mobile App Content.  All disclosures that you make about yourself on or through the Website or a Mobile App are made at your own risk and LAL shall not be responsible for any damages, injury or harm, including physical injury, which may arise from any disclosures made by you. 

 

11. MONITORING USERS AND CONTENT

You understand that all Third-Party Content is the sole responsibility of the person from whom such Third-Party Content originated, including, but not limited to, Author’s of Mobile App Content.  Users who upload content to a Mobile App, to the extent permitted, are similarly responsible for any content they upload.  LAL does not control Third-Party Content posted by others and does not have any obligation to monitor Third-Party Content for any purpose.  If at any time LAL chooses, in its sole discretion, to monitor Third-Party Content, LAL nonetheless assumes no responsibility for such Third-Party Content, no obligation to modify or remove any Third-Party Content, and no responsibility for the conduct of the Author or User submitting any such Third-Party Content.  You acknowledge that LAL may or may not pre-screen Third-Party Content, but that LAL and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Third-Party Content that is available on the Website or through the Services or any Mobile App.  Without limiting the foregoing, LAL and its designees may, at any time and without prior notice, remove any Third-Party Content that in the sole judgment of LAL violates these Terms, the MyAppStudio.com Objectionable Content Policy or is otherwise objectionable.  You agree that you must evaluate, and bear all risks associated with the use of any Third-Party Content, including any reliance on the accuracy, completeness, usefulness or legality of such Third-Party Content.

12. PROHIBITED USES

 

12.1 As a condition of your use of the LAL Properties, you will not use the LAL Properties for any purpose that is unlawful or prohibited by these Terms or in the territories where you are located or where you make a Mobile App available.  Access to the LAL Properties from territories where access or use thereof is illegal is strictly prohibited.  You are responsible for complying with all local rules, laws, and regulations including, without limitation, rules about intellectual property rights, the Internet, technology, data, electronic mail, and privacy.

12.2 You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute or exploit any portion of the LAL Properties, use of the LAL Properties, access to the LAL Properties or Mobile App Content or Third-Party Content obtained through the LAL Properties for any purpose not expressly authorized in these Terms.

12.3 You agree not to intentionally interfere with or damage, impair or disable the operation of the LAL Properties by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious or harmful code.

12.4 You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the LAL Properties, features that prevent or restrict the use or copying of any content accessible through the LAL Properties, or features that enforce limitations on the LAL Properties or any Mobile App Content or Third-Party Content. 

12.5 You agree not to attempt to gain unauthorized access to the LAL Properties, or any part of them, other accounts, computer systems or networks connected to the LAL Properties, or any part of them, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the LAL Properties or any activities conducted on or through the LAL Properties.

12.6 You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the LAL Properties.  You agree neither to modify the LAL Properties in any manner or form, nor to use modified versions of the LAL Properties, including, without limitation, for the purpose of obtaining unauthorized access to the LAL Properties, unless the modifications are expressly permitted by LAL. 

12.7 You agree that you will not use any robot, spider, scraper, or other automated means to access the Website or any Mobile Apps for any purpose without our express written permission, or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Website or to a Mobile App.

12.8 You agree not to utilize framing techniques to enclose any trademark, logo, or other LAL materials without our express written consent.  You agree not to use any meta tags or any other “hidden text” utilizing LAL’s name or trademarks for any purpose without our express written consent.

12.9 You will promptly remove any links that LAL finds objectionable in its sole discretion.  You agree not to use any LAL logos, graphics, or trademarks as part of the link without our express written consent.

12.10 You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the LAL Properties, including end users of a Mobile App.  This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.

12.11 You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the LAL Properties, the Website, the Services or any Mobile Apps developed by LAL, or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

12.12 You agree not to modify, adapt, translate or create derivative works based upon the LAL Properties except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

12.13 In connection with Mobile App Content or other content uploaded by you, you further agree that you will not:
(a) publish falsehoods or misrepresentations that could damage LAL or any third party;
(b) use any copyrighted content owned or controlled by a third party, including, but not limited to, musical works, sound recordings, literary works, photographs, audiovisual works, or any other works without obtaining the necessary permissions, licenses, and authorizations for the use of such third-party content;
(c) submit material that is unlawful, defamatory, libelous, slanderous, threatening, pornographic, obscene, vulgar, harassing, harmful, hateful, abusive, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate;
(d) post advertisements or solicitations of business;
(e) impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
(f) post content that would be harmful to minors in any manner; or
(g) reproduce, distribute, publicly display, publicly perform, communicate to the public, adapt, or otherwise publish or cause to be published any content except as permitted by these Terms and the features of the Services.

 

13. ACCOUNT INFORMATION

In order to access some features of the LAL Services, including the creation of a Mobile App, the provisioning of credit card information, and maintaining your payee information for the payment of Service Fees, you will have to create an account on the Website.  You agree that the information you provide to LAL upon registration and, at all other times, will be true, accurate, current, and complete.  If you are an Author, you also agree that you will ensure that this information is kept accurate and up-to-date at all times that your Mobile App is available in a Marketplace or receiving Mobile App Content via the Services and for the six (6)-month period following the removal of your Mobile App from a Marketplace or the termination of the delivery of Mobile App Content to your Mobile App.  You acknowledge, consent, and agree that LAL may access, preserve, and disclose your account information and your Personalized Marks and any other information submitted by you if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to:
(1) comply with legal process;
(2) enforce these Terms;
(3) respond to a claim that any content you upload to the Website, a Media Site or a Mobile App violates the rights of third parties;
(4) respond to your requests for customer service; or
(5) protect the rights, property, business interests or personal safety of LAL, its users or the public.

14. PASSWORD

When you register for yourself or on behalf of a Service Customer, you will receive a password.  As you will be responsible for all activities that occur under your password, including the ordering of the Services, you should keep your password confidential.  You are solely responsible for maintaining the confidentiality of your account and password, and any credit card or payee information submitted thereunder, and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password.  If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you are required to immediately notify LAL.  You may be liable for the losses incurred by LAL or others due to any unauthorized use of your account. 

15.           LINKS AND THIRD-PARTY CONTENT

 

15.1        LAL or third parties may provide links on and through the LAL Properties to third-party websites (“Reference Sites”), including on, through, and around Mobile App Content.  LAL has no control over such Reference Sites or Third-Party Content, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability or reliability of Reference Sites or content linked to by the LAL Properties.  LAL provides links to you only as a convenience, and the inclusion of any link on the LAL Properties does not imply our affiliation, endorsement or adoption of the Reference Sites or any information therein.  ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON REFERENCE SITES OR AVAILABLE THROUGH REFERENCE SITES, IS SOLELY AT YOUR OWN RISK.  When you leave the Website, our Terms and Privacy Policy no longer govern.  You should review applicable terms and policies, including the privacy and data gathering practices, of any Reference Sites.  LAL reserves the right to provide advertising on and through the Mobile Apps that are created using Free Services.  Further, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the LAL Properties are solely between you and such advertiser.  YOU AGREE THAT LAL WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE LAL PROPERTIES.

15.2 Notwithstanding any rights and licenses granted to you in these Terms, the Website and Mobile Apps may contain Third-Party Content for certain limited uses, and your right to access, use, and share the Third-Party Content, and any content that contains, incorporates, adapts, or otherwise utilizes such Third-Party Content, may be subject to certain restrictions including, but not limited to, prohibitions on saving such Third-Party Content or any derivative works based thereon to any Device, whether alone or as a part of any derivative work based thereon.  You agree to abide by all restrictions and limitations of use that apply to such Third-Party Content.

 

16. AVAILABILITY OF SERVICES AND LAL PROPERTIES

LAL may discontinue the Services at any time with or without notice and without any liability to you.  LAL may make changes to or discontinue any of the media, web communities, and products available on or through the LAL Properties at any time, with or without notice and without any liability to you.  LAL makes no guarantees that any Mobile Apps, including Premium Services Mobile Apps, or Mobile App Content, will continue to be made available or supported by LAL, and you shall have no claims against LAL in the event LAL terminates support for or access to any Mobile Apps or Mobile App Content, with or without notice.  The media, products or services on the Website may be out of date, and LAL makes no commitment to update these materials on the Website. 

17.           TERMS OF USE VIOLATIONS; TERMINATION

 

17.1 You agree that LAL, in its sole discretion and for any or no reason, may terminate or suspend any User (including Authors), a User account or a Mobile App, and remove and discard all or any part of such account at any time (including any and all Mobile App Content associated with such account), with or without notice or liability to the affected User; provided, however, that the termination of a User account will not terminate LAL’s obligation to pay an Author any of the Author Fees to which the Author is entitled.  You agree that any termination of your access to the LAL Properties or any account you may have may be undertaken without prior notice, and you agree that LAL shall not be liable to you or any third party for any such termination, other than for the payment to you of any Author Fees to which you may be entitled.  LAL does not permit infringing activities on the LAL Properties and reserves the right to terminate access to the LAL Properties, and remove all content submitted by any User who is found to be infringing the rights of a third party.  Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities.  These remedies are in addition to any other remedies LAL or third parties may have at law or in equity. 

17.2  If you are dissatisfied with the LAL Properties, please let us know by e-mailing us at feedback@myappstudio.com.  Your input is valuable to us.  Your only other remedy with respect to any dissatisfaction with
(a) the Website or a Mobile App,
(b) any term of these Terms,
(c) any policy or practice of LAL in operating the LAL Properties or providing the Services, or
(d) any content or information transmitted through the Website or a Mobile App, is to terminate these Terms and your account.  You may terminate these Terms at any time by closing your account, discontinuing your use of any and all parts of the Website, and providing LAL notice of termination by e-mailing us at accounts@myappstudio.com.  Notwithstanding the termination of your account, LAL will continue paying you any Author Fees to which you are entitled prior to your termination. 

 

18.  Effect of Termination for Authors.

 

You understand and acknowledge that upon any termination, suspension, or expiration of these Terms with respect to an Author account, LAL has no further obligation to distribute the Author’s Mobile App or make available the Author’s Mobile App Content, including through instances of the Author’s Mobile App that have already been downloaded and installed by end users, and that in such a case, LAL reserves the right to display an error message of its choosing (or no error message at all) to such Users of the Author’s Mobile App.

19. INDEMNIFICATION; HOLD HARMLESS

You agree to indemnify and hold harmless LAL, and its parent, subsidiaries, affiliates or any related companies (including those which share substantially common ownership), its suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs or debt and expenses (including attorney's fees and court costs) arising out of:
(1) your use or misuse of the LAL Properties;
(2) LAL’s use of your Personalized Marks;
(3) your violation of these Terms;
(4) your violation of the rights of any other person or entity, including claims that your Personalized Marks or your Mobile App Content infringe or violate any third party intellectual property rights;
(5) your breach of the foregoing representations, warranties, and covenants; and
(6) LAL’s use or exploitation of any of your Mobile App Content as authorized in these Terms, including, but not limited to, demands for payment by persons or entities claiming any rights in or to all or any portion of your Mobile App Content, including, by way of example and not limitation, owners of copyrights in musical works, sound recordings, movies, or audiovisual works; performing rights organizations and other similar collection societies; unions or guilds; and producers, engineers or other third parties.  LAL reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify LAL and you agree to cooperate with our defense of these claims.  You agree not to settle any matter without the prior written consent of LAL.  LAL will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

20. DISCLAIMERS; NO WARRANTIES

 

20.1 TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, LAL, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS WITH RESPECT TO THE WEBSITE, THE SERVICES, ALL MOBILE APPS, AND ALL MOBILE APP CONTENT.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LAL OR THROUGH THE LAL PROPERTIES OR FROM ANY MOBILE APP CONTENT WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.  YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 20, THE TERM LAL INCLUDES LAL’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUPPLIERS, LICENSORS, AFFILIATES, AND SUBCONTRACTORS.

20.2 ".YOU EXPRESSLY AGREE THAT THE USE OF THE LAL PROPERTIES, INCLUDING ALL MOBILE APPS, IS AT YOUR SOLE RISK.  THE WEBSITE, THE SERVICES, THE MOBILE APPS AND MOBILE APP CONTENT, AND ANY THIRD-PARTY MEDIA, ADVERTISING, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE LAL PROPERTIES, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.

20.3 LAL, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE WEBSITE, THE SERVICES, ALL MOBILE APPS OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.  AS MOBILE APP CONTENT IS OFTEN MADE AVAILABLE TO END USERS DYNAMICALLY AT THE TIME AN END USER ACCESSES A MOBILE APP (AND IS NOT STORED LOCALLY WITHIN A MOBILE APP), AN AUTHOR’S MOBILE APP CONTENT WILL NOT BE AVAILABLE TO USERS OF THE AUTHOR’S MOBILE APP IN THE ABSENCE OF AN ACTIVE CONNECTION TO A DATA NETWORK WITH CONNECTIVITY TO THE INTERNET.

20.4 AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE WEBSITE, THE SERVICES, ANY MOBILE APP, ANY THIRD-PARTY ADVERTISING OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, USEFULNESS, OR OTHERWISE, AND EXPRESSLY DISCLAIM ANY WARRANTY THAT OFFERING A PREMIUM SERVICES MOBILE APP FOR DISTRIBUTION ON ANY MARKETPLACE WILL RESULT IN ANY INCOME OR REVENUE TO THE AUTHOR OF THE MOBILE APP.

20.5 YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE WEBSITE AND ANY MOBILE APP OR REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR DEVICE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA, A MOBILE APP OR MOBILE APP CONTENT.

21. LIMITATION OF LIABILITY AND DAMAGES

21.1  UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL LAL OR ITS AFFILIATES, CONTRACTORS, DIRECTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR OR ANY THIRD PARTY’S (INCLUDING USERS OF YOUR MOBILE APP IF YOU ARE THE AUTHOR OF A MOBILE APP) ACCESS OR USE OF, OR INABILITY TO ACCESS OR USE, THE WEBSITE, THE SERVICES, YOUR MOBILE APP, OR ANY REFERENCE SITES, OR ANY OTHER INTERACTIONS WITH LAL, EVEN IF LAL OR AN LAL AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.  IN SUCH CASES, LAL’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW. 

21.2 IN NO EVENT SHALL LAL OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR PARTNERS, LICENSORS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE WEBSITE, THE SERVICES OR YOUR MOBILE APP OR MOBILE APP CONTENT (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE AMOUNT OF FEES YOU HAVE PAID LAL IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.

21.3 THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN LAL AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE WEBSITE OR THROUGH ANY MOBILE APP OR RECEIVED BY YOU THROUGH ANY REFERENCE SITES.

22. LIMITATIONS BY APPLICABLE LAW; BASIS OF THE BARGAIN

22.1 CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.  THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.

22.2 YOU ACKNOWLEDGE AND AGREE THAT LAL HAS OFFERED THE WEBSITE, THE SERVICES AND MOBILE APPS, SET ITS PRICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND LAL, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND LAL.  YOU ACKNOWLEDGE AND AGREE THAT LAL WOULD NOT BE ABLE TO PROVIDE THE WEBSITE, THE SERVICES OR MOBILE APPS ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

23. NO PAYMENTS BY LAL FOR USE OF MUSICAL WORKS, SOUND RECORDINGS AND OTHER COPYRIGHTED MATERIALS

LAL does not control any Mobile App Content or other content transmitted on or through Mobile Apps.  To that end, LAL does not pay any royalties for the reproduction, distribution, public performance, public display, communication to the public, creation of derivative works or other exploitation of any musical works, sound recordings, audiovisual works, movies, literary works or other copyrighted materials through any Mobile App, including as embodied in Mobile App Content.  Each Author is solely responsible for the payment of any royalties that may be due for the reproduction, distribution, public performance, public display, communication to the public, creation of derivative works or other exploitation of any musical works, sound recordings, audiovisual works, movies, literary works or other copyrighted materials through the Author’s Mobile App, including as embodied in any Mobile App Content.  Each User who posts or contributes any copyrighted works for inclusion in any Mobile App or Mobile App Content, to the extent the functionality of a Mobile App permits such contribution, is similarly liable for the payment of any royalties as if the User were an Author under these Terms.  The obligation to be responsible for any payment includes, but is not limited to, payments that may be due any music publishers, record labels, performing rights societies or other collective licensing bodies, featured or non-featured vocalists or musicians, unions, guilds or any other third party claiming an interest, including a copyright interest, in any copyrighted work.

24. UNAUTHORIZED USE OF THIRD-PARTY CONTENT; DIGITAL MILLENNIUM COPYRIGHT ACT

24.1 If you own the rights to any intellectual property or are an agent for an owner, and you believe any content made available on the Website or through any Mobile Apps, including as embodied in Mobile App Content, infringes your or your principal’s intellectual property rights, then you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing LAL’s Designated Copyright Agent with the following information in writing:

Please consult your legal counsel or see 17 U.S.C. § 512 to confirm these requirements.

24.2 LAL does not tolerate infringing activities and infringement of intellectual property rights on or through the use of Mobile Apps, and LAL will remove all Mobile App Content and any other content if properly notified that such Mobile App Content or other content infringes on another's intellectual property rights, including copyrights and trademarks.  It is LAL’s policy to respond promptly to notices of alleged infringement that comply with the DMCA.  In addition, LAL will promptly terminate without notice the accounts of Users, including, but not limited to, Authors of Premium Services Mobile Apps, that are determined by LAL to be “repeat infringers.”  A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had Mobile App Content or other content removed from the LAL Properties more than twice.

24.3 LAL’S Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement can be reached as follows:

Attention:          Copyright Agent
Liquid Air Lab GmbH
Vaihinger Markt 28
70563 Stuttgart
Germany

or by electronic mail at copyright@myappstudio.com.  For clarity, only DMCA notices should go to the Designated Copyright Agent.  Any other feedback, comments, requests for technical support or other communications should be directed to LAL customer service through support@myappstudio.com.  You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.  Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

25. Miscellaneous

25.1 LAL may provide you with notices, including those regarding changes to LAL’s terms and conditions, by postings on the Website, via electronic mail, or by postal delivery.  Notice sent via e-mail will be deemed given twenty-four hours after such e-mail is sent, unless LAL is notified that the electronic mail address is invalid.  Alternatively, we may give you legal notice by mail to a postal address, if provided by you.  In such case, notice will be deemed given three days after the date of mailing.

25.2 If a dispute arises between you and LAL, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly.  Accordingly, you and LAL agree that we will resolve any claim or controversy at law or equity that arises out of these Terms or the Websites (a “Claim”) in accordance with one of the subsections below or as LAL and you otherwise agree in writing.  Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution.  We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
(a)  Choice of Law; Forum.  These Terms shall be governed in all respects by the laws of Germany.  You agree that any claim or dispute you may have against LAL must be resolved by a court located in Stuttgart, Germany, except as otherwise agreed by you and LAL or as described in the Arbitration Option paragraph below.  You agree to submit to the personal jurisdiction of the courts located within Stuttgart, Germany for the purpose of litigating all such claims or disputes.  If you are a resident of the United States and for any reason a court located in the United States does not enforce the choice of forum set forth in this Section 25.2(a), then the exclusive forum for resolution of any dispute between you and LAL will be the federal and state courts located in Santa Clara County, California.
(b) Arbitration Option.  For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration.  In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties.  The ADR provider and the parties must comply with the following rules:
(i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration;
(ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and
(iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.  Any ADR provider chosen under this Section 1.1(a) must be located in one of the following three cities but not any other city:  Stuttgart, Germany; London, England, or Santa Clara, California.  The party seeking ADR resolution may select the location of the ADR provider. Improperly Filed Claims.  All claims you bring against LAL must be resolved in accordance with this Section 25.2 (Dispute Resolution).

All claims filed or brought contrary to this Section 25.2 (Dispute Resolution) shall be considered improperly filed.  Should you file a claim contrary to this Section 25.2 (Dispute Resolution), LAL may recover attorneys’ fees and costs up to $5,000, provided that LAL has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.

25.3  A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision.  The failure of LAL to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.

 

25.4 In the event that the application of any provision of these Terms to any particular facts or circumstances shall be held to be invalid or unenforceable under the law hereof, then: (a) such provision shall be reformed without further action by the Parties to the extent strictly necessary to render such provision valid and enforceable when applied to such particular facts or circumstances; and (b) the validity and enforceability of such provision as applied to any other particular facts or circumstances, and the validity and enforceability of all of the other provisions of these Terms, shall in no way be affected or impaired thereby.

 

25.5 The Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, whether by sale, merger, operation of law, or otherwise, without LAL’s prior written consent, but may be assigned by LAL without restriction.  Any assignment attempted to be made in violation of these Terms shall be void.  These Terms shall be binding upon and inure to the benefit of the parties hereto, and their permitted successors, heirs, and assigns.

 

25.6 You agree that no joint venture, partnership, employment, or agency relationship exists between you and LAL as a result of these Terms or use of the LAL Properties.  You further acknowledge that by submitting Personalized Marks or other content, no confidential, fiduciary, contractually implied or other relationship is created between you and LAL other than pursuant to these Terms.

 

25.7 Sections 5.6(c) (Aggregation License), 8 (“Ownership; Proprietary Rights”), 14 (“Password”), 19 (“Indemnification; Hold Harmless”), 20 (“Disclaimers; No Warranties”), 21 (“Limitation of Liability and Damages”), 22 (“Limitations by Applicable Law; Basis of the Bargain”), and 25 (“Miscellaneous”) will survive any termination of these Terms.

 

25.8 The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.

 

25.9 This is the entire agreement between you and LAL relating to the subject matter herein and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter.  These Terms shall not be modified except in a writing signed by both parties, or by a change to these Terms made by LAL as set forth in Section 4 above.

 

25.10 Notwithstanding any other provision in these Terms, if LAL is materially unable to perform any of its obligations (including, without limitation, the delivery of a Mobile App to Distributors, delivery of a Mobile App or Mobile App Content to Users, or payment of Author Fees) due to any natural disaster, network failure, pandemic, riot, war, governmental action, or other event outside its reasonable control (a "Force Majeure Condition"), LAL shall be relieved of such obligation for so long as such Force Majeure Condition continues.

 

25.11 The services hereunder are offered by Liquid Air Lab GmbH.  You can contact Liquid Air Lab GmbH via postal mail at Vaihinger Markt 28, 70563, Stuttgart, Germany, or by electronic mail at support@myappstudio.com.  Depending upon the jurisdiction where you reside, you may have a right to have this same information electronic mailed to you by sending a letter to the foregoing address with your electronic mail address and a request for this information.