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AOL DEVELOPER NETWORK AGREEMENT AND TERMS OF SERVICE

READ THIS AGREEMENT CAREFULLY. WE ARE WILLING TO ALLOW YOU TO USE THE AOL DEVELOPER NETWORK ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS IN THIS AGREEMENT.

BY USING OR ACCESSING THE AOL DEVELOPER NETWORK, YOU ARE AGREEING ELECTRONICALLY TO THE FOLLOWING TERMS (THE "AGREEMENT"). YOU AGREE THAT ANY DISPUTE THAT YOU MAY HAVE WITH US OVER THIS AGREEMENT OR THE AOL DEVELOPER NETWORK MUST BE RESOLVED IN VIRGINIA . IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE AOL DEVELOPER NETWORK.

If you are accepting this Agreement on behalf of your employer or another entity, you represent and warrant that you have the full legal authority to bind your employer or such entity to this Agreement.

1. ABOUT THIS AGREEMENT; USAGE RULES.

a. Definitions. The following definitions apply in this Agreement:

  • “Application(s)” means the developer applications, code (in object or source code form, and instructions) provided by us, such as, APIs, SDKs (Software Development Kits) and related documentation, data, content and services.
  • “API” means application programming interfaces.
  • “AOL Developer Network” means the Applications and all related interactive online services and content (including web pages, message boards, blogs, chat services, FAQs, etc.), documentation and software products provided by us on our family of Web sites for the use and distribution of the Applications.
  • “Developer ID” means a unique identifier issued by us that gives you access to certain Applications.
  • “Developer Product” means any product developed by you that is based upon, incorporates, references or interacts with the Applications, including without limitation, Web sites, online services or software applications.
  • “We,” “us” or “AOL” means AOL LLC and its corporate affiliates.
  • "You” and “your” means both you and such person or entity on whose behalf you act, if any.

b. General Terms and Usage Rules. This Agreement contains the general terms and conditions that govern your registration, access and use of the AOL Developer Network. Each Application will have additional terms, licenses, documentation, usage rules and restrictions (“Usage Rule(s)”) that will supplement this Agreement. Any specific Usage Rules for an Application will be posted with such Application and be binding on you. If you do not agree to the Usage Rules of a particular Application, do not use the Application.

c. Changes to the Agreement. We may modify this Agreement and any Usage Rule at any time. You shall assume all responsibility in reviewing this Agreement periodically at http://dev.aol.com so that you will be apprised of any changes. If you continue to use the AOL Developer Network (including any Applications) after we post changes to these terms, you are signifying your acceptance of the new terms. If you disagree with any changes to this Agreement, you must discontinue your use of the AOL Developers Network and all rights and licenses granted to you under this Agreement terminate immediately.

2. REGISTRATION . We may require that you register with us to gain access to certain features and services of the AOL Developer Network or to obtain an Application or Developer ID. You may create a single account only. You must provide accurate identification, contact, and other information required as part of the registration process. You may not create any script or other automated tool that attempts to create multiple developer accounts. We may require that you use or obtain an AOL screen name or other user name authorized by us to authenticate your access to the AOL Developer Network (“Screen Name”). You agree to abide by any separate terms and policies that will apply to your registration and use of such Screen Name. We may reject in our sole discretion any Screen Name selected by you that we determine is inappropriate. We may in our sole discretion reject any registration for any reason.

3. GENERAL RULES FOR APPLICATIONS. The following terms, as may be supplemented from time to time by the Usage Rules, apply to your access and use of the Applications:

a. Developer ID . We may require that you obtain a Developer ID to use certain Applications. We may, in our sole discretion, issue to you a Developer ID that you may be permitted to use for a variety of Applications, or we may require that you obtain a separate Developer ID for a specific Application. Your Developer ID(s) will be uniquely associated with all versions, upgrades and updates of the Developer Products created by you. Your Developer Product must at all times incorporate the applicable Developer ID in compliance with the Usage Rules for that Application. You may not obtain a Developer ID under false pretenses, including without limitation, “spoofing” an IP address or misrepresenting any URLs that will incorporate an Application. We have the right at all times to block attempts to access our networks with an invalid or revoked Developer ID or if a Developer Product associated with a Developer ID exceeds the usage limits for a specific Application. We, in our sole discretion, shall determine the number of unique Developer IDs that we provide to you. You may not share, loan, provide, transfer or sublicense your Developer ID to any other person or party. We have the right, in our sole discretion and without limiting our other legal remedies, to terminate any Developer ID and/or to prevent access to our network. In addition to any other restrictions contained in this Agreement or in any applicable Usage Rule, you may not register for more than one Developer ID for each Application. You may not use any additional Developer IDs issued by AOL to you to circumvent any usage limits for an Application.

b. Your Responsibilities. You provide the Applications and your Developer Product at your sole option. We are not responsible for the subsequent use or misuse by end users who access the Applications through your Developer Product. You are responsible for (i) all activity under your Developer IDs and Developer Products, (ii) keeping your Developer IDs confidential and (iii) notifying us immediately if you believe your Developer ID has been misappropriated. You agree to implement any feasible procedure that is or may become available to secure your Developer IDs from misuse by others. You will work with us immediately to correct any security deficiencies that may have been caused as a result of the misappropriation by any party of your Developer ID.

c. Usage limitations . You shall abide by any usage limits that we may impose on an Application, including without limitation, the number of times your Developer ID or your Developer Product may “call” or invoke AOL services. If you wish to exceed a usage limitation, you must obtain our prior written permission and you may be required to enter into a separate license agreement. We may change usage limitations at any time in our sole discretion.

d. Attributions; Links. You shall incorporate into your Developer Products such disclaimers, terms and attributions that we may request or require for a specific Application, including any branding elements. You also agree to incorporate links, banners or other content that we may reasonably request or require from time to time to promote certain AOL features or services.

e. Disclosures . You shall post and present to users of your Developer Products such consent forms or user acknowledgements that we prepare and/or require for use with a specific Application. You agree that you shall not modify or conceal from view any such consent form or user acknowledgement prepared by us.

f. End User Terms. You shall require that end users of your Developer Products agree to an enforceable end-user agreement (an “End User Agreement”) that is protective of us and contains at least the following specific, minimum terms: (i) you, and not AOL, are responsible for the Developer Product; (ii) our Applications are provided as-is, without any warranties, and that we expressly disclaims all implied or express warranties, including the implied warranties of merchantability, accuracy, fitness for a particular purpose and non-infringement; (iii) a prohibition against modifying or creating derivative works of any Application or any portion of AOL code included as part of your Developer Product; (iv) a prohibition against decompiling, reverse engineering, disassembling, and otherwise reducing the Application or any portion of AOL code included as part of your Developer Product to a human-perceivable form, to the full extent allowed by law; (v) a provision indicating that ownership of the Applications resides with AOL; (vi) a disclaimer of indirect, special, incidental, punitive, and consequential damages; (vii) a complete and accurate disclosure to end users of the privacy practices and policy applicable to your Developer Products, and, (viii) such other terms as may be required by us for a specific Application.

g. Privacy Policy . You shall develop a privacy policy and incorporate the policy into your End User Agreement for your Developer Products. The privacy policy must follow generally accepted industry standards relating to, among other things, what privacy practices are disclosed, how those practices are disclosed, and how much detail is provided about a practice. In addition, you shall make the privacy policy easily accessible to your end users during and after installation. You shall, at a minimum, notify the end users of your Developer Product(s) that: (i) you, and not AOL , are responsible for any personal or other data collected by your product or on your web site or both; and (ii) that our Applications may also collect and store personal or other data and, accordingly, the end users should check the privacy policy on the appropriate AOL web site for more information.

h. Reporting . You shall, to the extent that it is reasonably feasible, provide us with information that we may request from time-to-time related to your use of an Application. Such information may include, without limitation, bugs that you have identified with an Application and/or bug fixes that you may have developed through your use of an Application.

i. Usage Data. AOL's servers record information when you visit our websites or when Applications and/or Developer IDs call or invoke AOL services. This information may include, without limitation, the URL, IP address, browser type, Developer ID and access times and dates. We may use this information to promote, operate, and improve AOL services and properties, including the AOL Developer Network, and deliver the services that you or the end users of your Developer Products have requested through the Applications.

4. PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property rights in the Applications and all other content, software, services and material offered on or through the AOL Developer Network shall remain in AOL, its licensors and/or other providers (“IP Rights”). The IP Rights are protected by copyright, patent, trade secret and other intellectual property laws and by international treaties. You shall not take any action to jeopardize, limit or interfere in any manner with these IP Rights. You acknowledge and agree that you obtain no intellectual property rights or licenses by this Agreement except for those licenses expressly granted in this Agreement.

5. LICENSE. Subject to the terms of this Agreement and the limitations stated on the applicable Usage Rules, you may use the Applications for the limited purpose of creating and distributing your Developer Products. The rights we grant to you us under this Agreement are licensed, not sold. This license is non-exclusive and revocable. You may not transfer or sub-license this right to any other person or entity. You shall not distribute any Application or code provided by AOL in any manner except as expressly authorized by this Agreement and the applicable Usage Rule. You shall not use the AOL Developer Network in a manner that exceeds the limitations set forth in this Agreement and/or in the applicable Usage Rules. You may not charge users a separate fee for the specific use of an Application. We and our licensors reserve all rights not expressly granted to you.

6. TRADEMARK LICENSES. For purposes of this Agreement, the term "Trademarks" means all trademarks, trade names, service marks, logos, domain names, along with any other distinctive brand features of each party. You may use only the Trademarks that we, in a Usage Rule, specifically authorize you to use for the purpose of identifying your Developer Product's utilization of the Application and for such other attributions or promotions that we may require for an Application. The rights we grant to you under this Agreement constitute a nontransferable, nonsublicenseable, nonexclusive license during the term of this Agreement to display such Trademarks solely as set forth expressly in the applicable Usage Rule. We may terminate or modify your right to use any specific Trademark at any time for any reason. Your license to use such Trademarks expires immediately upon termination of this Agreement, if we modify or withdraw such license in our discretion, or if you discontinue the use of the applicable Application. You may use the AOL Trademarks only in accordance with our guidelines. You hereby grant to us a nontransferable, nonexclusive license during the term of this Agreement to use your Trademarks in our promotions or press releases (as determined by us in our sole discretion) regarding your participation in the AOL Developer Network and to the extent that it is necessary for us to provide the AOL Developer Network services to you.

You expressly agree that you will not:

  • display any AOL Trademark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by AOL, other than your use of the Applications, or that can be reasonably interpreted to suggest editorial content has been authored by, or represents the views or opinions of AOL, its officers, directors, employees, agents or affiliates;
  • use any AOL Trademarks to disparage AOL and/or its affiliates or any of its products or services;
  • display an AOL Trademark on your Developer Product if it contains or displays adult content or promotes illegal activities, gambling, or the sale of tobacco or alcohol to persons under twenty-one (21) years of age;
  • display an AOL Trademark as the most prominent element on any page of your website or Developer Product;
  • display an AOL Trademark in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to AOL as determined by us in our sole discretion;
  • display an AOL Trademark on your Developer Product in a manner that violates any law or regulation; or
  • remove, distort or alter any element of an AOL Trademark (this includes squeezing, stretching, inverting, discoloring, etc.).

You understand and agree that we have the sole discretion to determine whether your use of AOL Trademarks is in accordance with the above restrictions.

Except as set forth in this section, nothing in this Agreement shall grant or shall be deemed to grant you any right, title or interest in or to our Trademarks. All use by you of AOL Trademarks (including any goodwill associated therewith) shall inure to the benefit of AOL. At no time during or after the term of this Agreement shall you challenge or assist others to challenge the AOL Trademarks (except to the extent such restriction is prohibited by law) or the registration thereof by AOL or its parent, nor shall you attempt to register any Trademarks (including domain names) that are confusingly similar in any way (including but not limited to, sound, appearance and spelling) to those of AOL.

7. GENERAL RESTRICTIONS. You may not use or allow or assist anyone to use the AOL Developer Network in any way that (a) exceeds the usage restrictions set forth in this Agreement and any applicable Usage Rules; (b) violates the terms of this Agreement and any applicable Usage Rule; (c) violates the rights of others; (d) facilitates the generation of SPIM, SPAM, or other bulk unsolicited communications; (e) removes or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels from any Application or from any other content or materials on the AOL Developer Network; (f) encumbers, sells, rents, leases, sublicenses, or otherwise transfer rights to the Applications or any other aspect of the AOL Developer Network; (g) attempts to decompile, disassemble, reverse engineer, or derive the source code for any software product provided by us to you in object code format only; (h) causes or enables the distribution of any viruses, Trojan horses, trap doors, back doors, worms, time bombs, cancelbots, adware, spyware or other computer programming routines designed or intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (i) facilitates illegal activities of any type, the distribution of pornography, online gambling, regulated activities without obtaining appropriate licenses from governmental authorities, sex lines, solicitation of minors, and any other activity determined by us in our discretion and judgment to be an inappropriate use of the AOL Developer Network; (j) misleads or attempts to mislead users; (k) interferes with the rights of others to use the AOL Developer Network; (l) use the Applications as a means to engage in conduct that reflects poorly upon, disparages or devalues AOL's reputation or goodwill, as determined in our sole discretion; or (m) causes damage to or interferes with the proper functioning of any AOL-provided software, network or services. Your Developer Product may not incorporate any Publicly Available Software, in whole or in part, in a manner that may subject the Applications, in whole or in part, to all or part of the license obligations of any Publicly Available Software. As used herein, the term "Publicly Available Software" means any software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models. You may not use the Applications for any mission critical application where human life or property may be at stake. You may not attempt to gain unauthorized access to any services, user accounts, computer systems or networks, through hacking, password mining or any other means. We may take any legal and technical remedies to prevent the violation of this provision and to enforce this Agreement.

8. SOFTWARE . We may offer certain software products, such as browsing clients, instant messaging clients and rendering engines for you to download or use in object code form. Such software products will be subject to the terms of the license agreements that accompany them. You agree that you will abide by those license terms if you download and/or use the software products. The software products are protected by copyright and other intellectual property laws and treaties and are owned by us or our suppliers. You may not use the software products in any manner that exceeds the license rights granted to you.

9. SUBMISSIONS. You agree that all content, comments, suggestions, ideas, complaints and other feedback relating to the Applications, your Developer Product and/or the AOL Developer Network that you disclose to us or post on the AOL Developer Network, may be used by us and our licensors, suppliers and licensees in any manner whatsoever, for no compensation and without limitation of any kind (“Submissions”). Notwithstanding the foregoing, we shall not be obligated to take action based upon any Submission provided by you.

Certain areas of the AOL Developer Network may allow you to post Submissions that can be accessed and viewed by others, including the public in general. You may only post Submissions to public areas on the AOL Developer Network that you created or that you have permission to post. In addition to all other restrictions set forth in this Agreement, you shall not post or transmit through the AOL Developer Network any Submission, or otherwise engage in any conduct that:

  • is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, or contains explicit or graphic descriptions, or accounts of, sexual acts;
  • victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; or
  • impersonates any person, business or entity, including AOL and its employees and agents.

You understand and agree that by posting a Submission in any public area on the AOL Developer Network, you also grant any third party permission to use and incorporate your ideas or comments without compensation or approval by you.

10. NO DUTY TO MONITOR. You agree that we are not liable for content that is provided by others on the AOL Developer Network. We have no duty to pre-screen content, but we have the right to refuse to post or to edit submitted content. We reserve the right to remove content for any reason, but we are not responsible for any failure or delay in removing such material.

11 . PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. We respect the intellectual property of others. If you believe that your work has been copied and is accessible on the AOL Developer Network in a way that constitutes copyright infringement, please follow the instructions on how to contact us to report possible copyright infringement.

12. THIRD PARTY SITES; ADVERTISERS. The AOL Developer Network may include links to third party websites, including links provided as automated search results. Some of these sites may contain materials that are objectionable, unlawful, or inaccurate. These links do not mean that we endorse these third party sites or services. You acknowledge and agree that we are not responsible or liable for any content or other materials on these third party sites. Any dealings that you have with advertisers found on the AOL Developer Network are between you and the advertiser and you acknowledge and agree that we are not liable for any loss or claim you may have against an advertiser.

13. EXPORT LAWS . You agree to comply fully with all import and export laws, regulations, rules and orders of the United States, or any foreign government agency or authority, and that you will not directly or indirectly export, re-export, transfer and/or release the Applications, software, related technology, or any product thereof, for any proscribed end-use, or to any proscribed country, entity or person (wherever located), without proper authorization from the U.S. and/or foreign government. You bear responsibility for and assume all expenses relating to your compliance with the described laws, regulations, rules and orders, and for obtaining all necessary authorizations and clearances.

14. YOUR REPRESENTATIONS AND WARRANTIES . You warrant to us that: (a) you have the full legal power and authority to enter into this Agreement; (b) you own and/or have obtained the necessary legal rights to provide all content contained in your Submissions; (c) all information provided by you to AOL in connection with your registration for and use of the AOL Developer Network is true and accurate; (d) you will abide by the applicable Usage Rules; and (e) that your use of the AOL Developer Network, the Applications, and the Developer Products operated or distributed by you (i) shall not be used in any commercially unreasonable manner; (ii) shall not infringe any intellectual property rights of any third party including without limitation, any right of privacy, publicity, copyright, trademark, or patent; and (iii) shall comply with all applicable laws, rules and regulations, including without limitation, consumer protection, data security, and privacy laws.

15. RIGHT TO INVESTIGATE; RIGHT TO AUDIT. You understand and agree that we reserve the right to use whatever technical and legal remedies available to us to prevent abuses to the AOL Developer Network. We reserve the right to investigate or monitor in our own discretion and by any means we deem appropriate (a) your compliance with this Agreement and (b) any activity or conduct that we believe violates the terms of this Agreement. In addition to any other rights that we may have in this section and in the Agreement, we reserve the right to request an audit to investigate compliance with this Agreement.

16 . NON-ASSERT . In consideration of the licenses granted herein, and other consideration provided by us to you under this Agreement, you covenant not to sue or otherwise assert any patent rights against us or any of our affiliates or licensees for any alleged patent infringement during the term of this Agreement by any product or service that uses any Application.

17. FEES. Your use of certain features of the AOL Developer Network (including, your use of certain Applications) may be subject to a fee, which shall be disclosed to you in the applicable Usage Rule. We may change the fees and/or add new fees from time to time in our sole and exclusive discretion. If you elect to use an Application that is subject to a fee, you hereby agree to pay any and all fees described in the applicable Usage Rule. We may terminate this Agreement without notice to you in the event you fail to pay the fees as set forth in this Agreement. All fees paid under this Agreement are non-refundable. All payments made by you under this Agreement shall exclude, and you shall pay, any sales, use, excise, gross receipts or other taxes associated with such payments or this Agreement.

18. AOL'S DISCLAIMER OF WARRANTY; AS IS. THE AOL DEVELOPER NETWORK (INCLUDING ALL SERVICES, SOFTWARE PRODUCTS AND APPLICATIONS) ARE PROVIDED WITH ALL FAULTS ON AN "AS IS" BASIS. YOU ARE USING THE AOL DEVELOPER NETWORK AT YOUR OWN RISK. WE, OUR LICENSORS AND OTHER PROVIDERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES THAT THE AOL DEVELOPER NETWORK IS FREE OF DEFECTS, VIRUS FREE, AND ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, THAT THE FUNCTIONALITY OF THE AOL DEVELOPER NETWORK WILL MEET YOUR REQUIREMENTS, OR THAT ERRORS IN THE AOL DEVELOPER NETWORK WILL BE CORRECTED. WE DISCLAIM THE IMPLIED WARRANTIES THAT THE AOL DEVELOPER NETWORK AND THE APPLICATIONS ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING, UNLESS SUCH IMPLIED WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. FURTHER, WE, OUR LICENSORS AND PROVIDERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE AOL DEVELOPER NETWORK IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR AN AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW. YOU BEAR THE ENTIRE RISK AS TO THEIR QUALITY AND PERFORMANCE AND YOU ASSUME THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.

19. LIMITATION OF LIABILITY . WE, OUR LICENSORS AND PROVIDERS HAVE NO LIABILITY WITH RESPECT TO YOUR USE OF THE AOL DEVELOPER NETWORK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR PARENT, AFFILIATES, DIRECTORS, EMPLOYEES, DISTRIBUTORS, LICENSORS, SUPPLIERS, AGENTS OR RESELLERS (COLLECTIVELY, THE "AOL GROUP") BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE AOL DEVELOPER NETWORK, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION. IN ADDITION, THE MAXIMUM AGGREGATE LIABILITY OF THE AOL GROUP FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE FOLLOWING AMOUNTS:

(A) ONE HUNDRED DOLLARS (US $100) FOR ANY SPECIFIC APPLICATION PROVIDED AT NO CHARGE, IN WHICH THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT; OR

(B) FOR ANY APPLICATION PROVIDED FOR A FEE, NOT MORE THAN THE TOTAL AMOUNT PAID DURING A ONE-YEAR PERIOD FOR THE SPECIFIC APPLICATION AT ISSUE.

20. ACKNOWLEDGEMENT. The disclaimer of warranty, and limitation of damages set forth above are essential elements of the basis of the bargain between us and you. You agree that we would not be able to provide the Applications on an economic basis without such limitations.

21. YOUR INDEMNITY. You shall indemnify, hold harmless and, at our request, defend us and/or our licensors, officers, directors, employees, agents and representatives from and against any and all claims, liabilities, losses, damages, expenses and costs (including attorneys' fees and costs) relating to your breach of any provision under this Agreement or otherwise arising out of your use of the AOL Developer Network, including, but not limited to, any claim related to infringement or misappropriation of intellectual property rights, which includes but is not limited to, infringement by your Developer Product and/or any content contained therein (except to the extent such a claim is based solely on an unaltered Application). We shall give you prompt notice of any such claim made against it, and you and AOL shall cooperate in the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof, provided that we must approve the terms of any settlement or compromise, and such approval shall not be unreasonably withheld.

22. TERM, TERMINATION. We may change, suspend, or discontinue all or any aspect of the Applications, including their availability, at any time, and may terminate your use of the Applications at any time prior to or after your development and/or deployment of your Application, without notice, for no reason or for any reason, including but not limited to your breach of any condition hereunder. You may terminate this Agreement by ceasing use of the Applications, including without limitation by removing any and all code from your Application enabling your use of the Applications. You agree that once the Agreement is terminated, you will not use the Applications or enable access or use of any AOL services. Cancellation terms for any Application subject to a fee will be set forth in the applicable Usage Rule.

23. HIGH RISK ACTIVITIES. The AOL Developer Network and Applications are not fault--tolerant and are not designed, manufactured or intended for use in environments in which their failure could lead directly to death, personal injury, or severe physical or environmental damage, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems ("High Risk Activities"). ACCORDINGLY, WE AND OUR LICENSORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. YOU AGREE THAT THE AOL GROUP WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM THE USE OF THE AOL DEVELOPER NETWORK OR THE APPLICATIONS.

24. U.S. GOVERNMENT END-USERS. The Applications and any software products are a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial software" and "commercial computer documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202 (June 1995). Consistent with 48 C.F.R. 12.212, 48 C.F.R. 27.405(b) (2) (June 1998) and 48 C.F.R. 227.7202, all U.S. Government End Users acquire the Tools with only those rights as set forth herein.

25. ELECTRONIC NOTICES. YOU AGREE TO TRANSACT WITH US ELECTRONICALLY. WE MAY PROVIDE NOTICES TO YOU ELECTRONICALLY (1) VIA E-MAIL IF YOU HAVE PROVIDED US WITH A VALID EMAIL ADDRESS OR (2) BY POSTING THE NOTICE ON A WEBSITE DESIGNATED BY US FOR THIS PURPOSE. The delivery of any Notice is effective when sent or posted by us, regardless of whether you read the Notice or actually receive delivery. You can withdraw your consent to receive Notices electronically by discontinuing your use of the AOL Developer Network.

26. INJUNCTIVE RELIEF . You acknowledge and agree that, notwithstanding any other provisions of this Agreement, your breach or threatened breach of this Agreement shall cause us irreparable damage for which recovery of money damages would be inadequate and that we, therefore, may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.

27. NO SUPPORT BY AOL. We have no obligation to provide support services for the Applications or the AOL Developer Network, although we may do so in our sole discretion. We are under no obligation to provide you with any error corrections, updates, upgrades, bug fixes and/or enhancements of the Applications. This Agreement does not grant you any right to any version enhancement update, or to a continuous availability of the Applications.

28. RELATIONSHIP . Your use of the Applications and participation in the AOL Developer Network do not create any partnership, joint venture or agency relationship between you and us. Neither you nor AOL has the power to direct or control the day to day activities of the other or to create or assume any obligation on behalf of the other.

29. SURVIVAL . Sections 3(a), 4, 7, 9, 10, 12, 14, 16, 18 - 21, 23 – 26 and 28 - 31 shall survive expiration or termination of this Agreement. We shall not be liable to you for damages of any sort resulting from terminating this Agreement.

30. JURISDICTION; VENUE. You agree that the laws of the Commonwealth of Virginia govern this Agreement and any claim or dispute that you may have against us, without regard to Virginia 's conflict of laws rules, and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. You further agree that any disputes or claims that you may have against us will be resolved by a court located in the Commonwealth of Virginia and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.

PLEASE NOTE THAT BY AGREEING TO THESE TERMS OF USE, YOU ARE: (1) WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST US BASED ON THE LAWS OF OTHER JURISDICTIONS, INCLUDING YOUR OWN; (2) IRREVOCABLY CONSENTING TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, STATE OR FEDERAL COURTS IN THE COMMONWEALTH OF VIRGINIA OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH US; AND (3) SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF COURTS LOCATED IN THE COMMONWEALTH OF VIRGINIA FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR CLAIMS.

31. MISCELLANEOUS . (a) This Agreement constitutes the entire agreement between you and us concerning the subject matter of this Agreement, which may only be modified by us. (b) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (c) If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the parties' original intent as nearly as practicable, and the remaining portions remain in full force and effect, or we may at its option instead terminate this Agreement. (d) The controlling language of this Agreement is English. If you have received a translation into another language, it has been provided for your convenience only. (e) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (f) You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. We may assign this Agreement to any entity at its sole discretion. (g) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (h) Neither party shall be in default or be liable for any delay, failure in performance or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.

Last Updated: 3-03-07

» Submitted by Developer Network on November 3, 2006 - 9:50am.