Last Updated: January 8, 2014
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SERVICES OFFERED BY PLAYHAVEN LLC, DOING BUSINESS AS PLAYHAVEN ("PLAYHAVEN," "WE" OR "US"). THESE TERMS OF SERVICE SET FORTH THE LEGALLY HTTP://PLAYHAVEN.COM (THE "SITE"), THE PLAYHAVEN MOBILE GAME LTV MAXIMIZATION PLATFORM ("PLAYHAVEN PLATFORM"), THE TOOLS OFFERED THROUGH THE PLAYHAVEN PLATFORM, INCLUDING THE ADVERTISING AND PUBLISHING DASHBOARDS, AND THE SERVICES THAT RELATE TO FACILITATING THE PURCHASE AND SALE OF MOBILE ADVERTISEMENTS BY BRINGING TOGETHER MOBILE ADVERTISERS AND PUBLISHERS, AS DESCRIBED MORE FULLY ON THE SITE (COLLECTIVELY, WITH THE SITE AND PLAYHAVEN PLATFORM, THE "SERVICES").
We may, in our sole discretion, modify this Terms of Service with or without notice to you. The "Last Updated" date at the top of this Terms of Service will indicate when the latest modifications were made. By continuing to access and use the Services after this Terms of Service has been modified, you are agreeing to such modifications. Therefore, you should review this Terms of Service prior to each use of the Services. In addition, when using particular services or features or making purchases on the Services, you shall be subject to any posted guidelines or policies applicable to such services, features or purchases that may be posted from time to time. All such guidelines or policies are hereby incorporated by reference into this Terms of Service.
You represent and warrant that if you are an individual, you are of legal age to form a binding contract, or that if you are registering on behalf of an entity, that you are authorized to enter into, and bind the entity to, these Terms of Service and register for the Services. Playhaven may, in its sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited and, in such circumstances, you agree not to use or access the Site or Services in any way.
As a condition to using Services, you may be required to register with Playhaven and select a password and enter your email address ("Playhaven User ID"). You shall provide Playhaven with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Terms of Service, which may result in immediate termination of your account. You may not (i) select or use as a Playhaven User ID a name of another person with the intent to impersonate that person; (ii) use as a Playhaven User ID a name subject to any rights of a person other than you without appropriate authorization. Playhaven reserves the right to refuse registration of, or cancel a Playhaven User ID in its discretion. You shall be responsible for maintaining the confidentiality of your Playhaven password, and are fully responsible for all activities that occur under Playhaven User ID. You agree it is your responsibility to (a) immediately notify Playhaven of any unauthorized use of your Playhaven User ID or any other breach of security, and (b) ensure that you exit from your account at the end of each session.
You further agree that you will not access the Services by any means except through the interface provided by Playhaven for access to the Services. Creating or maintaining any link from another website or application to any page or functionality on the Services without the prior written authorization of Playhaven is prohibited. Running or displaying the Services or any information or material displayed on the Services in frames or through similar means on another website or application without the prior written authorization of Playhaven is prohibited. Any permitted links to the Services must comply with all applicable laws, rules, and regulations.
This Terms of Service is effective unless and until terminated by either you or Playhaven. You may terminate this Terms of Service at any time, provided that you discontinue any further use of the Services. Playhaven also may terminate or suspend this Terms of Service, at any time, without notice, and accordingly deny you access to the Services, for any reason, including without limitation, if in Playhaven's sole discretion you fail to comply with any term or provision of this Terms of Service or your use is harmful to the interests of another user or Playhaven and its Affiliated Parties, and/or their respective business partners. Upon any termination of the Terms of Service by either you or us, you must promptly stop using the Services and destroy all materials downloaded or otherwise obtained from the Services, as well as all copies of such materials, whether made under the Terms of Service or otherwise. Any fees paid hereunder are non-refundable. All provisions of this Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Playhaven reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. Except as otherwise expressly stated in this Terms of Service, you agree that Playhaven and its Affiliated Parties (as defined later) shall not be liable to you or to any third party for any modification, suspension or discontinuation of the Services.
Playhaven grants to you a limited, revocable, non-transferable, non-exclusive and non-sublicensable license during the Services term to use the Playhaven SDK solely to access the Playhaven Platform and solely to the extent permitted hereunder. Except to the limited extent expressly provided in this Terms of Service, Playhaven does not grant, and you will not acquire, any right, title or interest (including, without limitation, any implied license) in or to any Playhaven intellectual property rights; and all rights not expressly granted herein are reserved to Playhaven. The Playhaven SDK may be downloaded from the Site.
If you are a mobile application publisher or advertiser that uses the Services, including the Playhaven Platform, you also agree to comply with the following terms:
IMPLEMENTATION. If you are a publisher, you may list assets including but not limited to mobile sites, applications, and device platforms ("Mobile Properties") and make them available for advertisement. If you are a publisher, you hereby grant Playhaven the right to access, index, store and cache requests made from user's Mobile Property to the Service, including by automated means. If you are an advertiser, you may produce content including but not limited to text links, banners, videos, and graphics ("Advertisements") for display on a publisher's Mobile Property. You agree to comply with the technical specifications provided by Playhaven to enable proper display of the Advertisements in connection with the Services.
COMMUNICATIONS SOLELY WITH PLAYHAVEN. You agree to direct to Playhaven and not to any advertiser or publisher, as the case may be, all communications regarding any matter arising out of your use of the Services.
CONTENT GUIDELINES. Please refer to the advertiser content guidelines (which are incorporated herein by reference) for information regarding acceptable use of content.
While Playhaven offers many platform services for free, some of the Services require payment of fees. Playhaven reserves the right to change its price list and to institute new charges at any time, upon prior notice to you, which may be sent by email or posted on the Site. If you are an advertiser, you shall pre-pay all applicable fees, as described on the Site, in connection with such Services selected by User. If you are a publisher, you shall receive a percentage of the Net Revenue of Advertisements associated with your use of the Services as solely determined by Playhaven. "Net Revenue" shall mean revenues actually received by Playhaven from the sale, use or other disposition of Advertisements displayed on publisher's Mobile Property less sales, use and excise taxes, less any agency commissions, carrier and/or partner fees, and less any allowances actually made or taken for returns, cash discounts or promotional allowances but excluding other revenues indirectly earned, if applicable, for consulting, planning and targeting, copywriting, site building, account management or technical modifications or technical innovations which may be charged by Playhaven to third parties from time to time. The portion of Net Revenue received by you shall be determined on the first Monday of each calendar month, on which day those revenues accrued to your account 30 or more days earlier shall become eligible to be paid. Payments to you shall be sent by Playhaven only if your earned balance is greater than or equal to $300USD. If your earned balance is less than $300USD, no check shall be sent until the following calendar month, on the first Monday of which Playhaven shall make the aforesaid determination anew. In addition, if you are a publisher, you agree that any payments that may become due to you (as described in this Terms of Service and on the Site) are specifically conditioned upon Playhaven's receipt of full payment from the applicable advertiser. If Playhaven does not receive the applicable payment in full from any such advertiser, Playhaven shall have no liability or responsibility to you (and you hereby release Playhaven) with respect thereto. If you dispute any payment made in connection with the Services, you must notify Playhaven in writing within 30 days of any such payment. Failure to so notify Playhaven shall result in the waiver by you of any claims related to such disputed payment. Payment shall be calculated solely based on records maintained by Playhaven. No other measurements or statistics of any kind shall be accepted by Playhaven or have any effect under this Terms of Service. Playhaven shall not be liable for any payment based on (i) any fraudulent impressions generated by any person, robot, automated program or similar device or for fraudulent impressions similarly generated on any advertisements, as reasonably determined by Playhaven; (ii) impressions commingled with a significant number of fraudulent impressions or fraudulent clicks described in (i) above; or (iii) any breach of this Terms of Service by you. To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information associated with your account and Playhaven User ID. Please email us at email@example.com or click here to obtain the proper payment information form. Once you have informed us of your payments preference by completing and delivering the payment information form to us, we will issue payments in accordance with this Terms of Service. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your use of the Services.
You must have an internet-enabled cell phone or device using an operating systems supported by Playhaven in order to access the Playhaven Platform. Normal carrier charges and taxes may apply to any content you obtain from the Services. Playhaven is not responsible for any surcharges you incur from your mobile phone or internet service provider as a result of the use of the Services. In the event you change or deactivate your mobile device, any content such as awards collected, or coupons received will not transfer to your new device.
You expressly agree that, as part of the Services, you will receive communications by push notification, text message (SMS), and/or email, including promotional communications from time to time. You may stop receiving promotional alerts (a) via push notification by emailing your request to opt-out, along with your cell phone number to firstname.lastname@example.org, or by disabling push notifications on your mobile device, (b) via text message by sending your request to opt-out, along with your cell phone number to email@example.com and following the opt-out instructions in the text message, or (c) via email by emailing firstname.lastname@example.org. You may not opt out of Service-related emails.
Playhaven does not knowingly collect any personal information from children under the age of 13. Should your Mobile Properties be directed to children under the age of 13 or should you collect information from children under the age of 13 (further collectively referred as “Children’s Content”), we require you at all times to comply with the Children’s Online Privacy Protection Act of 1998 (“COPPA”), as amended from time to time. We require you to use the tools available in the Playhaven Services to designate users of your Mobile Properties that are under 13 or who have otherwise opted-out of personal information collection. Should you choose not to designate such users, we will assume that such users are not under the age of 13 or have not opted-out of personal data collection. Playhaven will not actively monitor your Mobile Properties for Children’s Content and compliance with COPPA, therefore, we disclaim liability for your failure to properly designate users through the Playhaven Services and your failure to honor your obligations set forth herein.
You (whether a publisher, advertiser or otherwise) agree that you will not (or authorize or encourage any third party to) use the Playhaven SDK, or the Services, generally, to:
You may submit reviews or other feedback using forms on the Services. Any comments, suggestions, or feedback relating to the Services (collectively, "Feedback") submitted to Playhaven shall become the property of Playhaven. Playhaven will not be required to treat any Feedback as confidential, and will not be liable for any ideas (including without limitation, product, application, site, Services or advertising ideas) and will not incur any liability as a result of any similarities that may appear in the Services, or operations, in the future. Without limitation, Playhaven will have exclusive ownership of all present and future existing rights to the Feedback of every kind and nature everywhere and will be entitled to use the Feedback for any commercial or other purpose whatsoever, without compensation to you or any other person sending the Feedback. You acknowledge that you are responsible for whatever material you submit, and you, not Playhaven, have full responsibility for the message, including its legality, reliability, appropriateness, originality, and copyright.
Links on the Services to third party websites and applications are provided only as a convenience to you. If you use these links, you will leave the Services. Your dealings with third parties through links to such third party websites or applications are solely between you and such third parties. You agree that Playhaven will not be responsible or liable for any content, goods or services provided on or through these outside websites or applications or for your use or inability to use such websites or applications. You will use these links at your own risk. You are advised that other websites on the Internet and mobile applications, including third party websites and applications linked from the Services, might contain material or information that some people may find offensive or inappropriate; or that is inaccurate, untrue, misleading or deceptive; or that is defamatory, libelous, infringing of others' rights or otherwise unlawful. Playhaven expressly disclaims any responsibility for the content, legality, decency or accuracy of any information, and for any products and services, that appear on any third party website or application.
Without limiting the foregoing, your correspondence or business dealings with, participation in promotions of or purchases from, advertisers or third party applications found on or through the use of the Services, including payment for and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser or third party application provider. You agree that Playhaven and its Affiliated Parties shall 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 or third party application providers on the Services.
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS TERMS OF SERVICE, PLAYHAVEN, ITS SUBSIDIARIES AND OTHER AFFILIATED COMPANIES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND OTHER REPRESENTATIVES (COLLECTIVELY, "PLAYHAVEN AND ITS AFFILIATED PARTIES") EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS TERMS OF SERVICE, PLAYHAVEN AND ITS AFFILIATED PARTIES MAKE NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE INFORMATION THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (E) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, YOUR MOBILE DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PLAYHAVEN AND ITS AFFILIATED PARTIES OR ON OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TERMS OF SERVICE.
PLAYHAVEN AND ITS AFFILIATED PARTIES SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING ANY LIABILITY (A) AS A PUBLISHER OF INFORMATION, (B) FOR ANY INCORRECT OR INACCURATE INFORMATION, (C) FOR ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF YOUR TRANSMISSIONS OR DATA, (D) FOR STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES, OR (E) FOR ANY OTHER MATTER RELATING TO THE SERVICES OR ANY THIRD PARTY WEBSITE OR APPLICATION. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOOD WILL, LOSS OF USE, LOSS OF DATA, COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR INFORMATION, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PLAYHAVEN AND YOU. THE INFORMATION AND SERVICES OFFERED ON AND THROUGH THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NOTWITHSTANDING THE FOREGOING, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF PLAYHAVEN AND AFFILIATED PARTIES FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR ANY INFORMATION OR SERVICE PURCHASED BY YOU FROM PLAYHAVEN ON THE SERVICES DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE RELEVANT CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID PLAYHAVEN ANY AMOUNTS FOR ANY INFORMATION OR SERVICE PRIOR TO THE DATE ON WHICH YOU FIRST ASSERT ANY CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH PLAYHAVEN IS TO STOP USING THE SERVICES AND CANCEL YOUR ACCOUNT.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE EXCLUSIONS AND LIABILITY ARE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
Pursuant to 47 U.S.C. Section 230 (d) as amended, we hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protection is available at http://www.staysafeonline.org.
The Services are controlled and operated by Playhaven from within the United States of America, and is intended for use only by residents of the United States. Playhaven makes no representations or warranties that the content or materials of the Services are appropriate or lawful in any foreign countries, or that any items or applications offered for sale or download through links on the Services will be available outside the United States. Those who choose to access the Services from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. You may not use or export or re-export any content downloaded from the Services or any copy or adaptation of such content, in violation of any applicable laws or regulations, including without limitation United States export laws and regulations.
We are committed to resolving any disputes that may arise in a fair and efficient manner. Our goal is to provide you with a neutral and cost-effective means of resolving the dispute quickly. Thus, for any claim related to this Terms of Service or our Services where the total amount sought (i) is equal to or more than $10,000USD, you may, or (ii) is less than $10,000USD, you must, initiate dispute proceedings by completing the Notice of Dispute Form available at http://world-static.playhaven.com/docs/PlayHaven_-_Notice_of_Dispute_Form.pdf. Playhaven may offer to settle the claim, provided however that if the dispute is not resolved within 30 days from the date of Playhaven's offer to settle or Playhaven's receipt of the Notice of Dispute Form (whichever is later), you may invoke binding arbitration by filing a separate Demand for Arbitration available at http://world-static.playhaven.com/docs/PlayHaven_-_Notice_of_Demand_For_Arbitration_Form.pdf. A party electing arbitration shall initiate it 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: (A) the arbitration shall be conducted, at the option of the party seeking relief, in person, by telephone, online, or based solely on written submissions; (B) any in person arbitration will take place in the county in which the city or town you have entered as your residence sits (and if neither is applicable, then the arbitration shall take place in San Francisco, California); (C) either party may bring a claim in small claims court in lieu of arbitration; (D) the ADR provider may award any form of individual relief; (E) Playhaven will pay all costs for non-frivolous claims; (F) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction; (G) Playhaven may not seek reimbursement of its attorney's fees in connection with such arbitration; (H) in the event you receive an arbitration award greater than Playhaven's last written settlement offer, Playhaven will pay a $10,000USD minimum recovery and twice the amount of the your attorney's fees, (I) claims must be brought in the parties' individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. You hereby agree that for any dispute or claim that is less than $10,000USD, you waive any right to a trial (by judge or jury), you waive any right to participate as a member of a class in a class action or similar proceeding, and you will abide by the dispute resolution mechanism in this Section.
The formation, construction and interpretation of this Terms of Service shall in all respects be governed by and construed in accordance with the laws of the United States and the State of California, without giving effect to any principles of conflicts of laws. This Terms of Service shall not be governed by the United Nations Conventions of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded from any interpretation of this Terms of Service. For any dispute that is equal to or more than $10,000USD and is not resolved or arbitrated under this Section of this Terms of Service, it is hereby agreed that any action at law or in equity arising under this Terms of Service and/or your use of the Services shall be finally adjudicated or determined in any court or courts in San Francisco, California, and the parties hereto hereby submit generally and unconditionally to the personal and exclusive jurisdiction and venue of these courts in respect to any such matter and consent to service of process by any means authorized by California law.
All claims you bring against Playhaven must be resolved in accordance with this Section. All claims filed or brought contrary to this Section shall be considered improperly filed and a breach of this Terms of Service. Should either party file a claim contrary to this Section, the other party may recover attorneys' fees and costs up to $10,000USD, provided that such party seeking such fees has notified the other in writing of the improperly filed claim, and the other has failed to promptly withdraw the claim.
If any provision of this Terms of Service shall be deemed unlawful, void, or for any reason unenforceable by a court of competent jurisdiction, the validity and enforceability of any remaining provisions shall not be affected. When used in this Terms of Service, the term "including" shall be deemed to be followed by the words "without limitation."
The failure of Playhaven and its Affiliated Parties to insist upon strict adherence to any term of this Terms of Service shall not constitute a waiver of such term and shall not be considered a waiver or limit that party's right thereafter to insist upon strict adherence to that term or any other term of this Terms of Service.
You agree that regardless of any statute or law to the contrary, any claim of cause of action arising from or relating to use of the Services or this Terms of Service must be filed within one year after such claim or cause of action arose, or will be forever barred. The "General Disclaimers; Limitation of Liability" provisions of this Terms of Service are for the benefit of Playhaven and its Affiliated Parties as defined herein, and each of these individuals or entities shall have the right to assert and enforce these provisions directly against you on its own behalf.
We respect the intellectual property rights of others and require that Service users do the same. If you believe that your proprietary work has been copied in a way that constitutes copyright infringement, please forward the following information to Playhaven at email@example.com, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. 512(c)(2), named below:
Where Playhaven has provided you with a translation of the English language version of these Terms of Service, then you agree that the translation is provided for your convenience only and that the English language versions of the Terms will govern your relationship with Playhaven.
If there is any contradiction between what the English language version of these Terms of Service says and what a translation says, then the English language version shall take precedence.
If you have any comments, questions, or complaints regarding this Terms of Service or the Services, or wish to report any violation of this Terms of Service, please contact us. We will address any issue to the best of our abilities as soon as possible.