GENWI CORPORATION TERMS OF USE AGREEMENT

Welcome to our website (this "Site")! This Site is operated by Genwi Corporation ("we," "us" and "our") and allows you to: (a) participate in interactive features that we may make available from time to time including without limitation participating in on-line fora, chatrooms and other features for communication (collectively "Chatrooms") or developing an app (the "App Developer Service") (all services, collectively, the "Services"); or (b) simply view this Site. We prepared this Genwi Terms of Use Agreement (this "Agreement") to help explain the terms that apply to your use of this Site.

In order to use the interactive features on this Site, you must first register with us through our on-line registration process on this Site. Regardless of how you decide to use this Site, your conduct on this Site is governed by this Agreement.

• App Process

  To get started making your own app, all you have to do is register with the Site and the follow the step by step instructions on the App Developer Service. You provide the Contributions (as defined below), and our App Developer Service turns your Contributions into an app.

  We will charge you a Development and Submission Fee as described in Section 7.1.

  After you create your app, we will review the app for submission to Google, Inc.'s Android Market (the "Android Market").

  After you create your app, we will also review it to determine whether it is suitable for submission to Apple, Inc.'s ("Apple") iPhone app store (the "Apple App Store"). PLEASE NOTE THAT WE DO NOT GUARANTEE THAT WE WILL SUBMIT YOUR APP TO APPLE.

  WE RESERVE THE RIGHT NOT TO SUBMIT YOUR APP TO THE APPLE OR GOOGLE IN OUR SOLE DISCRETION.

  This Development and Submission Fee entitles you to: (a) create one app using the App Developer Service; (b) assistance from us in adding up to 25 RSS feeds to your app; (c) assistance from us in uploading metadata and up to 25 categories for your app in accordance with the Android Market guidelines, or Apple App Store guidelines; (c) our qualitative review of your app for submission in our sole and absolute discretion to Apple; (d) potential submission in our sole and absolute discretion of your app to Apple; (e) submission of your app to the Android Market; and (f) assistance from us in removing your app from either the Apple App Store or the Android Market (as applicable). PLEASE NOTE THAT IT IS IN OUR SOLE AND ABSOLUTE DISCRETION WHETHER WE SUBMIT YOUR APP TO THE APPLE APP STORE, AND THAT WE DO NOT GUARANTEE THAT: (1) IF YOUR APP IS SUBMITTED TO THE APPLE APP STORE, THAT THE APPLE APP STORE WILL PUBLISH YOUR APP ON THE APPLE APP STORE; OR (2) THAT YOUR APP WILL NOT BE REMOVED FROM THE APPLE APP STORE OR ANDROID MARKET AFTER IT IS PUBLISHED.

  There are two options for monetizing your apps. Either we can place advertising on your app in which case we will not charge you a Marketing Fee. Or, you may elect to place your own advertising code in the app in which case, we will charge you a Marketing Fee as is described in Section 7.3 below.

  If you elect not to place any advertising on your app, we will charge you a Service Fee as is described in more detail in Section 7.4 below.

  If you wish to include an end user license agreement for your app, please submit it to us at: info[at]genwi[dot]com. We will place your agreement in the app so that your app users are required to click to accept your end user license agreement prior to installing the app on their device.

• Your Use of this Site and Affirmative Representations.

  When you use this Site, you represent that: (a) the information you submit is truthful and accurate; (b) you will update your contact information if it changes so that we can contact you; (c) your use of this Site and your use of Services available on this Site do not violate any applicable law or regulation; (d) you are 18 years of age or older; and (e) you will comply with the rules for on-line conduct and making Contributions and App Entries (as defined in Section 2 below) to this Site, as discussed in Section 2 below.

• Rules Governing Contributions.

  This Site may provide Services including without limitation Chatrooms and the App Developer Service that permit you to post or submit content to this Site. Please read our Privacy Policy, available at Privacy Policy to understand your privacy protections. You are entirely responsible for the content of, and any harm resulting from, any of your postings or submissions to this Site (collectively, "Contributions"). When you create or make available a Contribution, you represent and warrant that you:

  • own or have sufficient rights to post or submit your Contributions, on or through this Site;
  • will not post or submit Contributions that violate our or any other person's privacy rights, publicity rights, intellectual property rights (including without limitation copyrights) or contract rights;
  • have fully complied with any third-party licenses relating to Contributions, agree to pay all royalties, fees and any other monies owed to any person by reason of Contributions that you submitted or posted to or through this Site;
  • will not post or submit Contributions that: (i) are defamatory, damaging, disruptive, unlawful, inappropriate, offensive, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, filthy, threatening, excessively violent, harassing, or otherwise objectionable; (ii) incite, encourage or threaten immediate physical harm against another, including but not limited to, Contributions that promote racism, bigotry, sexism, religious intolerance or harm against any group or individual; or (iii) contain material that solicits personal information from anyone under 13 or exploits anyone in a sexual or violent manner;
  • will not post or submit Contributions that contain advertisements or solicit any person to buy or sell products or services (other than our products and services);
  • will not use this Site for any unauthorized purpose including collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other electronic communications, or engaging in unauthorized framing of, or linking to, this Site without our express written consent;
  • will not post or submit Contributions that constitute, contain, install or attempt to install or promote spyware, malware or other computer code, whether on our or others' computers or equipment, designated to enable you or others to gather information about or monitor the on-line or other activities of another party;
  • will not transmit chain letters, bulk or junk email or interfere with, disrupt, or create an undue burden on this Site or the networks or services connected to this Site, including without limitation, hacking into this Site, or using the system to send unsolicited or commercial emails, bulletins, comments or other communications; or
  • will not impersonate any other person or entity, sell or let others use your profile or password, provide false or misleading identification or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity.

• Your Ownership of Your Contributions and Your Responsibility for Complying with All Applicable App Store Owners' Terms and Conditions.

  • Your Ownership of Your Contributions. We do not claim any ownership right in the Contributions that you submit or post on or through the Site including without limitation the Contributions you make when creating an app by means of the App Developer Service. After posting your Contributions on or submitting your Contributions to the Site, you continue to retain any rights you may have in your Contributions, including any intellectual property rights or other proprietary rights associated with your Contributions, subject to the license you grant to us below.
  • Your Compliance with All App Store Owners' Terms and Conditions. You are solely responsible for complying with all app store owners' rules and regulations. You represent and warrant that you have complied with all applicable app store owners' terms and conditions.

• Our Intellectual Property Rights.

  • Site Content. All of the content on this Site including without limitation, the trademarks, service marks, and logos contained on this Site ("Materials"), are owned by or licensed to us and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. The Site and Materials are for your information and personal use only and not for commercial exploitation. We reserve all rights not expressly granted in and to this Site and the Materials. If you download or print a copy of the Materials for your own personal use, you must retain all trademark, copyright and other proprietary notices contained in and on the materials. You agree that you will not circumvent, disable or otherwise interfere with security related features of this Site or features that prevent or restrict use or copying of any Materials or enforce limitations on use of this Site or the Materials on this Site. You further agree not to access this Site by any means other than through the interface that we provide, unless otherwise specifically authorized by us in a separate written agreement.
  • App Developer Service. We hereby reserve all rights in the App Developer Services including without limitation all intellectual property rights therein. Nothing in this Agreement will be deemed to grant any license therein.
  • Apps. Subject to your rights in your Contributions, we own all the apps that you create by means of the App Developer Services.

• Grant of License to Us for Contributions.

  We need a license from you so that we can use your Contributions on this Site or elsewhere including without limitation, potentially submitting the app you create to an app store.

  By making a Contribution to this Site, you grant us a perpetual, non-exclusive (meaning you are free to license your Contribution to anyone else in addition to us), fully-paid, royalty-free (meaning that we are not required to pay you to use your Contribution), sublicensable (so that we can use affiliates, subcontractors and other partners such as hosted service providers to make the Site available to you or provide your app to an app store operator) and worldwide (because the Internet and this Site are global in reach) license to modify, create derivative works of, publicly perform, publicly display, reproduce and distribute the Contribution in connection with the Site, our business or the promotion thereof in any media formats and through any media channels now known or hereafter devised and to make or have made apps from the Contribution. This license does not grant us the right to sell your Contributions.

• Fees and Billing.

  • Development and Submission Fee. You will pay us a development and submission fee of two hundred ninty nine dollars per year (US$299 /year) ("Development and Submission Fee") for each app you develop by means of the App Developer Services.
  • Billing You must have either a PayPal account or a Google Checkout account to develop an app on the Site. You must have sufficient funds available in your account to fully pay for all applicable Development and Submission Fees, Marketing Fees and Service Fees. Either PayPal or Google Checkout will transfer all applicable fees from either your PayPal or Google Checkout account into either our PayPal or Google Checkout account (as applicable). We are not a financial institution. We do not insure you for any loss that might occur from your PayPal or Google Checkout accounts and do not pay you interest on your accounts. We are not responsible for your use of the PayPal or Google Checkout services. You must resolve any disputes directly with PayPal or Google Checkout.
  • Advertisements. If you place your own advertisements on your app, you are solely responsible for those advertisements, and you represent and warrant that all such advertisements comply with all applicable laws, rules and regulations. You can also elect not to place advertisements on your app.
  • Taxes. All payments required by this Agreement exclude all sales, value-added, use, on other taxes and obligations, all of which you shall pay in full, except for taxes based on our net income.

• Use and Protection of Account Number and Password.

  We will ask you to create a username and password. You are responsible for maintaining the confidentiality of your account number and password, if applicable. You shall not permit a third party to use your username and password. You are responsible for all uses of your account, whether or not actually or expressly authorized by you.

• Non-commercial Use.

  The Site and Services are for your personal use only and not for resale to any third party. You may not use the Services on a service bureau basis. You may not use the Site or Services in connection with any commercial endeavors except those that are specifically endorsed or approved by us.

• Our Management of this Site/User Misconduct.

  • Our Site Management. We may, but are not required to: (a) monitor or review this Site for violations of this Agreement and for compliance with our policies; (b) report to law enforcement authorities and/or take legal action against anyone who violates this Agreement; (c) refuse, restrict access to or the availability of, or remove or disable (to the extent technologically feasible) any Contribution or any portion thereof that may violate this Agreement, the law or any of our policies or are excessive in size or burdensome without prior notice to you; and/or (d) manage this Site in a manner designed to protect our and third parties' rights and property or to facilitate the proper functioning of this Site.
  • Our Right to Terminate Users. WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY DENY ACCESS TO AND USE OF THIS SITE TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION.
  • No Guaranteed Access to Contributions Upon Termination. IF YOUR ACCOUNT IS TERMINATED FOR ANY REASON, THE CONTENT THAT YOU HAVE POSTED MAY NO LONGER BE AVAILABLE. WE RESERVE THE RIGHT TO, BUT HAVE NO OBLIGATION TO STORE OR KEEP COPIES OF YOUR MATERIALS OR CONTRIBUTIONS, UNLESS OTHERWISE REQUIRED BY LAW OR COURT ORDER.
  • Risk of Harm. Please note that there are risks, including but not limited to the risk of physical harm, of dealing with strangers, including persons who may be acting under false pretenses. Please choose carefully the information you post on this Site and that you give to other Site users. You are discouraged from publicly posting the following information on this Site: your full name, telephone numbers and street addresses. Despite this prohibition, other people's information may be offensive, harmful or inaccurate, and in some cases will be mislabeled or deceptively labeled. You assume all risks associated with dealing with other users with whom you come in contact through this Site. We expect that you will use caution and common sense when using this Site.

• Term, Termination, Potential Refunds and Survival.

  • Term.This Agreement shall remain in full force and effect while you use this Site and pay all applicable fees.
  • Termination. You may terminate your use or participation at any time, for any reason, by sending us an email at info[at]genwi.com. Upon termination of your Site account for any reason, we will close your account, remove your apps from all applicable app stores, and you will no longer be able to retrieve materials contained in your account or use the App Developer Service.
  • Potential Refund for Apps Rejected by All App Store Owners. If all app store owners refuse to put your app in their stores, you may terminate your account in which case we will keep ten dollars (US $10) for each app rejected by all app store owners (for example, if all app stores rejected three of your apps, we will retain thirty dollars (US $30)) and return the remainder of the fees you paid for the app(s) that were rejected by all app stores. In clarification of the foregoing, the refund described in this Section 11.3 will not apply if you elect not to submit your app to an app store or if an app store owner places your app on its store and then subsequently removes the app for any reason.
  • Survival. Even after your use and participation is terminated, this Agreement will remain in effect, including sections: 2-7, 9-12 and 14-20.

• Copyright Policy.

  We may terminate the account and access rights of any repeat infringer. If you are a copyright owner or the legal agent of a copyright owner, and you believe that any user submission or content on this Site infringes upon your copyrights, you may submit a notification pursuant to the our Digital Millennium Copyright Act Notice DMCA.

• Modifications.

  The Internet and technology are rapidly changing. Accordingly, we may modify this Agreement from time to time. We will contact you if we do so, which is why it is important that you notify us immediately if your email address changes. If you are a registered user, you will be asked to click to accept the new agreement the next time you log on to this Site in order to be able to use the interactive portions of this Site. We will also put any revised versions of this Agreement on this Site with a notice advising of the change. It is therefore important that you regularly check this Site for any announcements about revisions and keep your contact information current to ensure you are informed of any changes.

• Third Party Sites.

  This Site may contain links to other websites ("Third Party Sites"). We do not own or operate the Third Party Sites, and we have not reviewed, and cannot review, all of the material, including goods or services, made available through Third-Party Sites. The availability of these links on this Site does not represent, warrant or imply that we endorse any Third Party Sites or any materials, opinions, goods or services available on them. Third party materials accessed through or used by means of the Third Party Sites may also be protected by copyright and other intellectual property laws. THIS AGREEMENT DOES NOT APPLY TO THIRD PARTY SITES. BEFORE VISITING A THIRD PARTY SITE BY MEANS OF THIS SITE OR A LINK LOCATED ON THIS SITE, USERS SHOULD REVIEW THE THIRD PARTY SITE'S TERMS AND CONDITIONS, PRIVACY POLICY AND ALL OTHER SITE DOCUMENTS, AND INFORM THEMSELVES OF THE REGULATIONS, POLICIES AND PRACTICES OF THESE THIRD PARTY SITES.

• Disputes Between Users.

  You are solely responsible for your conduct. You agree that we cannot be liable for any dispute that arises between you and any other user.

• Disputes with Us, Choice of Law and Forum.

  YOU AND WE AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN SANTA CLARA COUNTY, CALIFORNIA. YOU AND WE FURTHER AGREE THAT ANY DISPUTES SHALL BE RESOLVED UNDER THE SUBSTANTIVE LAW OF THE STATE OF CALIFORNIA (EXCLUSIVE OF ITS CHOICE OF LAW PROVISIONS). THE CONVENTION FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY.

• Disclaimers.

  THE SITE, THE SERVICES, ALL CONTRIBUTIONS OR ANY OTHER MATERIALS OR ITEMS PROVIDED THROUGH SITE ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OR CONDITIONS OF ANY KIND. BY OPERATING THIS SITE AND OFFERING THE SERVICES, WE DO NOT REPRESENT OR IMPLY THAT WE ENDORSE ANY CONTRIBUTIONS OR ANY OTHER MATERIALS OR ITEMS AVAILABLE ON OR LINKED TO BY THIS SITE, INCLUDING WITHOUT LIMITATION, CONTENT HOSTED ON THIRD PARTY SITES, OR THAT WE BELIEVE CONTRIBUTIONS OR ANY OTHER MATERIALS OR ITEMS TO BE ACCURATE, USEFUL OR NON-HARMFUL. WE CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THIS SITE OR THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THIS SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU AGREE THAT YOUR USE OF THIS SITE AND SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND EACH OF OUR ADVERTISERS, LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS AND OTHER CONTRACTORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED IN CONNECTION WITH THIS SITE AND YOUR USE THEREOF.

  WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF THIS SITE'S CONTENT, THE CONTENT OF ANY SITE LINKED TO THIS SITE, CONTRIBUTIONS, INFORMATION OR ANY OTHER ITEMS OR MATERIALS ON THIS SITE OR LINKED TO BY THIS SITE. WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF CONTENT, CONTRIBUTIONS AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SITE OR SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THIS SITE, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THIS SITE BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTRIBUTIONS, CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THIS SITE.

  SOME STATES OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN ONE OF THESE STATES OR JURISDICTIONS, THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

• Limited Liability.

  IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THIS SITE, THE SERVICES, CONTRIBUTIONS, MATERIALS OR ANY OTHER CONTENT THEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, OUR LIABILITY TO YOU IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY YOU AND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY SHALL NOT EXCEED $100.

• Indemnity.

  You agree to indemnify and hold us, our subsidiaries, affiliates, and licensors and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of this Site, the Services, your apps, Contributions or Materials in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above.

• Miscellaneous

  • Entire Agreement. This Agreement constitutes the entire agreement between you and us regarding the use of this Site and supersedes any prior or contemporaneous understandings and agreements between you and us related to the subject matter hereof.
  • Independent Contractors. Nothing in this Agreement shall be deemed to create an agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship of any kind between us and any user.
  • No Third Party Beneficiaries. This Agreement is between you and us. There are no third-party beneficiaries to this Agreement.
  • Section Titles. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
  • Non-Waiver. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision.
  • Severability. This Agreement operates to the fullest extent permissible by law. If any provision or part of a provision of this Agreement is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
  • Assignment. You may not assign your rights under this Agreement to any third party; we may assign our rights under this Agreement without condition.

This Agreement was last updated on: April 5, 2010.