These terms and conditions comprise the Agreement between You and WaveMarket for the location-based service described below (“Agreement”). The words “WaveMarket,” “we” or “us” refer to the service provider(s) WaveMarket, Inc., its affiliates and their vendors that provide services under this Agreement. The word “You” and “your” refers to you or any user of WaveMarket’s location-based services under this Agreement.
1. LOCATION-BASED SERVICE. You subscribed to a Service which incorporates a GPS-enabled mobile location application that allows You to identify, request and obtain mapping information for both people and places based on your location (“WaveMarket Application).
2. PRICING. Upon downloading the WaveMarket Application, You will be charged by and agree to pay your wireless telephone provider (“Carrier”) a monthly recurring charge of $9.99 (with navigation) or $2.99 (without navigation).
3. SMS MESSAGING. You may utilize Service to send SMS messages to other authorized IAC Mobile Service users. Your Carrier’s terms and conditions that govern your wireless service will also govern the use of SMS messages as part of the Service.
4. GRANT OF LICENSE. WaveMarket grants You the following rights provided You comply with all terms and conditions of this Agreement: a revocable, non-transferable and non-exclusive license to (a) use the WaveMarket Application provided that such use is consistent with these terms and conditions; and (b) install and use the WaveMarket Application on your mobile device, such as mobile phones, personal digital assistants or other digital electronic devices. This Agreement does not grant You the right to (i) distribute, rent, loan, lease, sell, sublicense, copy or otherwise transfer all or part of the WaveMarket Application; (ii) grant any access to the WaveMarket Application or the Service, or any rights granted hereunder to any other person. All rights not expressly granted herein are reserved by WaveMarket.
5. COLLECTION OF DATA. By accepting the Terms and Conditions and by utilizing the Service, You authorize WaveMarket to collect, use, and disclose geographic location and other personal information (including your name, address, telephone number, account number, equipment identifiers, and Internet Protocol addresses) necessary to enable both delivery of the Service and functions that are incidental or necessary to such delivery (including, but in no way limited to, invoicing or improving the WaveMarket Application or the Service). The collection, use and disclosure of personal information are governed by WaveMarket’s privacy policy at http://www.wavemarket.com/privacyPolicy.
6. PRIVACY AND ACCURACY OF DATA. You acknowledge and expressly agree that (a) You have no expectation of privacy when using the Service as it is a location-based service; (b) WaveMarket does not guarantee that results You may obtain from the Service, including but not limited to data, directions, maps, locations, turn-by-turn navigation and messaging, will be accurate, timely or reliable; (c) accuracy of the requested location information is subject to network capabilities, environmental conditions, and whether or not the devices are turned on and within Your underlying carriers’ coverage area.
7. RESTRICTIONS. This Agreement prohibits and You will (a) not reverse engineer, decompile, or disassemble the WaveMarket Application; (b) modify, translate, adapt, arrange, or create derivative works based on the Service or the WaveMarket Application, for any purpose; (c) not export the WaveMarket Application in violation of applicable export control laws; (d) not use the Service outside of the country of purchase or in a manner inconsistent with or in violation of this Agreement; (e) not remove or alter any identification, copyright or other notices included as part of the Service. Additionally, You will obey all traffic laws and will not use the Service while driving a motor vehicle.
8. OWNERSHIP. The WaveMarket Application and other underlying intellectual property used to provide the Service is protected by copyright, trade secret and other intellectual property laws and treaties and will remain the exclusive property of WaveMarket or its suppliers. WaveMarket or its suppliers will own all rights in any copy, translation, modification, adaptation, improvement, or derivation of such.
9. TERMINATION. WaveMarket reserves the right to modify this Agreement, the WaveMarket Application and the Service from time to time without notice. Changes to the WaveMarket Application and the Service will be effective upon WaveMarket implementing such changes. Changes to the Agreement will be effective upon WaveMarket posting any such change to this website. To keep apprised of such changes, You will be responsible for regularly reviewing this Agreement as posted on this website. Without prejudice to any other rights, WaveMarket may cancel or suspend, at it sole discretion, this Agreement, without notice and without any liability to You, if You do not abide by the terms and conditions of this Agreement, in which case You must immediately cease using the Service. This Agreement will terminate upon expiry or termination of your agreement with your Carrier and it may terminate upon the expiry or termination of WaveMarket’s agreement with your Carrier.
10. DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WAVEMARKET AND ITS SUPPLIERS PROVIDE TO YOU THE SERVICE (INCLUDING THE WAVEMARKET APPLICATION AND ANY OTHER UNDERLYING INTELLECTUAL PROPERTY USED TO PROVIDE SERVICE) AND ANY SUPPORT SERVICES RELATING TO THE SERVICE PROVIDED BY WAVEMARKET (“SUPPORT SERVICES”), IF ANY, AS IS AND WITH ALL FAULTS. WAVEMARKET DOES NOT WARRANTY UNINTERRUPTED USE OR OPERATION OF THE SERVICE OR THAT ANY DATA SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE AMOUNT OF TIME. WAVEMARKET AND ITS SUPPLIERS HEREBY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR WRITTEN, ORAL, CONTRACTUAL OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES, DUTIES OR CONDITIONS OF OR RELATED TO: MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WAVEMARKET MAKES NO CLAIM OF OWNERSHIP OF THE DATA OBTAINED THROUGH THE SERVICE, AND DOES NOT WARRANT THE ACCURACY OR RELIABILITY OF ANY SUCH DATA.
11. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WAVEMARKET OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF THE FOREGOING WARRANTIES OR LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE. IN THE EVENT APPLICABLE STATE OR FEDERAL LAW DOES NOT ALLOW THE COMPLETE EXCLUSION OR LIMITATION OF LIABILITY OF CLAIMS AND DAMAGES AS SET FORTH IN THIS AGREEMENT, WAVEMARKET’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTEDBY LAW.
12. LIMITATION OF CLAIMS. Notwithstanding any damages that You might incur for any reason whatsoever for use of the Service or data obtained while using the Service (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of WaveMarket and any of its suppliers under any provision of this Agreement and your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by You for the Service. The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
13. LIMITATION OF CARRIER’S CLAIMS. You acknowledge and agree that (a) your sole legal recourse with respect to any act or omission of your Carrier with respect to Service shall lie against such Carrier; and (B) You will hold harmless WaveMarket, any parent, affiliates, subsidiaries and suppliers, and its and their respective officers, directors, employees, agents, contractors, successors, and assigns from any judgments, claims, actions, losses, damages, liabilities, costs, or expenses (including, but not limited to, reasonable attorneys' fees and legal expenses) of any kind arising from or attributable to the acts or omissions of such Carrier.
14. THIRD PARTY CLAIMS. You agree to indemnify, defend and hold harmless WaveMarket and any affiliated companies, their respective officers, directors, employees, suppliers, subcontractors and agents from any loss, liability, claim, demand, damage, or expenses (including reasonable attorney’s fees) asserted by any third party due to or arising from or in connection with your use of the Service or the Support Services, respectively, in whole or part; this includes but is not limited to any addresses, directions or any other data You may obtain while using the Service. WaveMarket reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, which shall not excuse your indemnity obligations.
15. DISPUTE RESOLUTION. This Agreement shall be governed by the laws of the State of New York, U.S.A. without regard to its conflicts of law principles. Any suit and/or arbitration proceeding relating to any Claim shall be brought and prosecuted only in New York, New York. Except as provided in this paragraph, any and all controversies or claims of any nature arising out of or relating to this Agreement or the breach, termination or validity thereof, whether based on contract, tort, statute, fraud, misrepresentation or any other legal or equitable theory (the "Claim") shall be resolved solely and exclusively by arbitration under the then current Commercial Dispute Resolution of the American Arbitration Association ("AAA"). The arbitrator shall strictly limit discovery to the production of documents directly relevant to the facts alleged in the notices of arbitration and defense. If an evidentiary hearing is held, each Party's presentation of its case shall be limited to three (3) days. Requests for temporary injunctive relief may be submitted to a court of competent jurisdiction if the arbitrator has not yet been appointed but the arbitrator shall have the authority to modify any injunctive relief granted by such a court. The arbitration award shall be made final within six (6) months of commencement and may be entered by either Party in any court having competent jurisdiction. Each Party shall bear its own expenses, but those related to the compensation of the arbitrator shall be borne equally. The existence and contents of the entire arbitration shall be maintained by all participants as confidential, except as provided. In no event shall this provision be deemed to require either Party to arbitrate any Claim (including defenses thereto) concerning the validity, enforceability or infringement of any patent, copyright or trademark (including trade dress and service mark) right.
16. MISCELLANEOUS. The Service includes AT&T Natural Voices ® Text to Speech technology licensed from Wizard Software Corporation. This Agreement, including any addendum or amendment to this Agreement, are the entire agreement between You and WaveMarket relating to the Service and the Support Services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Service or any other subject matter covered by this Agreement. To the extent the terms of any WaveMarket policies or Services for Support Services conflict with the terms of this Agreement, the terms of this Agreement shall control. The failure of WaveMarket to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid or contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the parties’ intentions, and the other provisions of the Agreement shall remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service, Support Services or to the Agreement must be commenced within one (1) year after such claim or cause of action arose or You waive such claim or cause of action.