Dated November 4, 2009
This MySpace Apps developer addendum (this “Apps Developer Addendum”) to the MySpace.com Terms of Use Agreement (as may be modified from time to time, the “MySpace Agreement,” located at www.myspace.com/index.cfm?fuseaction=misc.terms), together with the MySpace Agreement, constitute legally binding terms and apply to your use of the MySpace Apps Developer Platform (as defined below) and the development software, features and functionality included therein and relating thereto (the “MySpace Apps Developer Service”). Any capitalized terms used in this Apps Developer Addendum not otherwise defined will have the meanings assigned to them in the MySpace Agreement. For the avoidance of doubt, (i) the MySpace Apps Developer Service is a “MySpace Service” as defined by the MySpace Agreement, and all references to “MySpace Services” in the MySpace Agreement include the MySpace Apps Developer Service and (ii) MySpace Applications and MySpace Application Content are “Content” as defined by the MySpace Agreement and all references to “Content” in the MySpace Agreement include the MySpace Applications and MySpace Application Content. In the event of a conflict between this Apps Developer Addendum and the MySpace Agreement, this Apps Developer Addendum will govern with respect to the MySpace Apps Developer Service. The term “Developer” refers to a User that has accessed and/or used the MySpace Apps Developer Service. Please read the MySpace Agreement and this Apps Developer Addendum carefully.
You are authorized to use the MySpace Apps Developer Service (regardless of whether your access or use is intended) only if you agree to abide by all applicable laws, rules and regulations (“Applicable Law”), the MySpace Agreement and this Apps Developer Addendum. By accessing and/or using the MySpace Apps Developer Service you agree to be bound to the terms of the MySpace Agreement and this Apps Developer Addendum. In addition in consideration for becoming a Developer and/or making use of the MySpace Apps Developer Service, you must indicate your acceptance of the MySpace Agreement and this Apps Developer Addendum during the Developer application creation process. You may be required to download software or content and/or agree to additional terms and conditions in order to use and access the MySpace Apps Developer Service. MySpace reserves the right to modify the MySpace Agreement and/or this Apps Developer Addendum at any time and from time to time, and each such modification will be effective upon posting on the MySpace Services. All material modifications will apply prospectively only. Your continued use of the MySpace Apps Developer Service following any such modification constitutes your agreement to be bound by and acceptance of the MySpace Agreement and/or this Apps Developer Addendum as so modified. It is therefore important that you review the MySpace Agreement and this Apps Developer Addendum regularly. If you do not agree to be bound by this Apps Developer Addendum and the MySpace Agreement and to follow all Applicable Law, you are required to discontinue use of the MySpace Apps Developer Service immediately.
To use the MySpace Apps Developer Service, you must be a Member and have an active MySpace profile. By your use of the MySpace Apps Developer Service, you hereby confirm that you are at least 18 years old, or if under 18, you have obtained your parent’s or legal guardian’s permission to use the MySpace Apps Developer Service. You must be proficient in English to use the MySpace Apps Developer Service. A valid email address must be submitted by each Developer and will be kept on file with MySpace. If your provided email address becomes invalid and you do not provide an updated email address, your access to the MySpace Apps Developer Service may be suspended or terminated.
This Apps Developer Addendum shall remain in full force and effect while you are a Developer. You may terminate your Developer status at any time, for any reason, by ceasing to use the MySpace Apps Developer Service. MySpace may terminate your Developer status and your access to the MySpace Apps Developer Service or may suspend or terminate your participation in the MySpace Apps Developer Service or any part thereof, including, without limitation, by refusing to post, removing or deleting your MySpace Application(s) and your MySpace Application Content, in full or in part, at any time, for any or no reason. Even after your Developer status and/or access to the MySpace Apps Developer Service has terminated, this Apps Developer Addendum and the MySpace Agreement will remain in effect, except that all rights granted to you hereunder shall immediately terminate. Upon termination of your Developer status or MySpace’s termination of your access to the MySpace Apps Developer Service you must immediately cease to use and delete any MySpace Property that you may have accessed (as defined below). Notwithstanding the foregoing, you understand and agree that MySpace is under no obligation to delete or ask Users to delete your MySpace Application Content that has been incorporated into other aspects of the MySpace Services (for example, within MySpace Profiles) and therefore such MySpace Application Content may continue to appear and be used indefinitely.
Upon submission of a MySpace Application, you will be assigned a unique public and private key pair which you will need to provide to MySpace in order to access that MySpace Application. You are entirely responsible for maintaining the confidentiality of your private key(s). You will not use the public or private key of another Developer at any time or to disclose your private key(s) to any third party. You will notify MySpace immediately if you suspect any unauthorized use of or access to your MySpace Profile or your public or private key(s). You are solely responsible for any and all use of your MySpace Profile and private and public key(s). MySpace, Fox Interactive Media, Inc. (“FIM”) and their affiliates are not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any Content which you submit in connection with your MySpace Profile or MySpace Applications.
5.1 MySpace allows you to include Advertising only on your Application Profile Page(s) and Canvas Page(s) in the areas which you control; provided that you may not provide Advertising which in any way implies MySpace endorsement or affiliation with such Advertising. MySpace Application Content which appears on a MySpace Profile or User’s MySpace homepage (a “MySpace Homepage”), in Applications Communications or a page which contains any other MySpace Application (other than your other MySpace Applications or a MySpace Application which in such instance you have agreed to provide Advertising for) may not contain any Advertising except your own MySpace Application’s brand attribution or brand attribution to a third party service used in your MySpace Application. Notwithstanding the foregoing, if a MySpace Application includes branding that will appear in the MySpace Application on a MySpace Profile or User’s MySpace Homepage (i) you are may not receive revenue or other compensation from a third party in connection with the inclusion of such branding (except in the case of Contracted Development as described below); and (ii) the MySpace Application must offer functional utility to Users other than the provision of such branding. You may receive compensation from a third party to develop and provide a MySpace Application on behalf of such third party (“Contracted Development”) and in such case, the MySpace Application may contain that third party’s branding; provided that you understand that you will at all times remain responsible and liable for compliance with the MySpace Agreement and this Apps Developer Addendum in connection with such MySpace Application and any branding included therein. In addition, with respect to Contracted Development, MySpace reserves the right, to suspend or terminate the third party brand’s access to all or part of the MySpace Services if any MySpace Application(s) submitted containing such third party’s brand fails to comply with the MySpace Agreement or this Apps Developer Addendum and you must inform the third party of such right.
5.2 You will not, and will not permit any person, directly or indirectly, to provide Advertising in connection with your MySpace Application or MySpace Application Content that is inconsistent with the MySpace Agreement or this Apps Developer Addendum, including, without limitation, the rules and restrictions regarding posts and updates to a User’s MySpace Profile and other communications with Users, including, without limitation, as set forth in Section 7.11. For the avoidance of doubt, you may not append any Advertisements to otherwise acceptable posts or communications. Without limiting the generality of the foregoing, Developer shall block the following types of Advertising (each, an “Abusive Ad”) from delivery to its MySpace Application and/or MySpace Application Content: Advertising (a) which conducts any action outside of the area you control on your Application Profile Page or Canvas Page or otherwise fails to conform to the format and technical specifications set by MySpace, including, without limitation, by use of expandable banners, floating Advertising, and/or interstitials; (b) incorporating sounds or music unless the User has consented to the initiation of those sounds or music; (c) triggering a pop-up, pop-under, dialogue box (e.g. alerts, etc.), or initiating a downloadable application; (d) for online gambling, online pharmacies, pornographic products or services, alcohol, guns, or tobacco; (e) containing any software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise adversely alter the User experience; and (f) containing any content, work, name, mark, designation, materials, or link that, to a reasonable person (as determined by MySpace in its sole discretion), may be infringing, abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening, or malicious or in any way contains nudity, sexually explicit or illegal content. Notwithstanding anything to the contrary contained herein, you acknowledge that providing or permitting Advertising to be provided, directly or indirectly, in violation of this Section 5, including, without limitation, failing to block an Abusive Ad will constitute a breach of this Apps Developer Addendum by you and entitle MySpace to all available remedies in law and equity, including, without limitation, special, punitive and exemplary damages and indemnification from you in connection with any third party claim, action or other proceeding arising out of or related to such event. In addition, any Advertisements you include on the MySpace Services must not contain software downloads or download command or dialog boxes.
6.1. As between the parties, MySpace retains all right, title and interest, including without limitation, all intellectual property rights, in and to (i) the MySpace Services, including, without limitation, the MySpace Apps Developer Platform, including, without limitation, any and all content, look and feel, user interfaces, data and metrics in connection therewith, and any derivative works and/or compilations thereof or relating thereto; (ii) User Information; and (iii) any feedback you may provide to MySpace in connection with the MySpace Apps Developer Service (collectively, “MySpace Property”). You agree to take such actions (including, without limitation, execution of affidavits or other documents) as MySpace may reasonably request to effect, perfect or confirm MySpace’s rights in and to the MySpace Property.
6.2. Subject to the terms and conditions of the MySpace Agreement and this Apps Developer Addendum, MySpace grants to you a limited, non-exclusive, revocable, non-sublicensable and non-transferable license to access and use the MySpace Apps Developer Platform solely to develop, test, display, distribute and execute MySpace Application(s) and MySpace Application Content, allow you to access the User Information as made available by MySpace, and allow other Users to access your MySpace Application; provided that MySpace reserves the right to limit, restrict or prohibit your or other User access to the MySpace Apps Developer Service, including without limitation the MySpace Apps Developer Platform and/or all MySpace Services, at any time or over a period of time, with or without notice, in its sole discretion. You will not, and will not permit any person, directly or indirectly, to (i) reverse engineer, disassemble, reconstruct, decompile, translate, modify, copy, or, other than as explicitly permitted hereunder, create derivative works of the MySpace Services, including, without limitation, the MySpace Apps Developer Platform, or any aspect or portion thereof, including without limitation, source code and algorithms; or (ii) distribute, sell, resell, lease, license, sublicense or transfer or otherwise make the MySpace Apps Developer Platform or any User Information available to any person or entity other than as expressly provided therein (including by storing the MySpace Apps Developer Platform or User Information in any manner which would enable or facilitate access to it (other than in the case of the User from which such User Information was retrieved (“Originating User”)). You will use the User Information solely as necessary for the functionality of your MySpace Application.
6.3. As between the parties, you retain all right, title and interest, including without limitation, all intellectual property rights, in and to any MySpace Application and MySpace Application Content that you create (excluding any MySpace Property and MySpace Content). By submitting or posting a MySpace Application or MySpace Application Content on or through the MySpace Services, you hereby grant to MySpace a limited, non-exclusive, fully paid and royalty-free, worldwide license under any patent issued for such MySpace Application or MySpace Application Content and additional rights to use, copy, sublicense, reformat, modify, delete from, add to, publicly perform, publicly display, reproduce, distribute, execute and store and cache on its servers such MySpace Application and any MySpace Application Content related thereto, including, without limitation, the right to link to, frame or embed your MySpace Application and MySpace Application Content and the right to and allow third parties to display Advertising and other Content with and in connection with your MySpace Application and MySpace Application Content. Except as expressly granted herein, neither party grants the other party any intellectual property or other proprietary rights. You hereby release and covenant not to sue MySpace, its subsidiaries, or affiliates, or their respective officers, directors, agents, partners and employees, for any and all damages, liabilities, causes of actions, judgments, and claims pertaining to any materials or intellectual property you develop utilizing, in reliance on or with reference to the MySpace Apps Developer Service or which otherwise may arise in connection with your utilization of, reliance on or reference to the MySpace Apps Developer Service. In addition, you understand and acknowledge that (i) MySpace and/or FIM may be independently creating applications and/or other Content in parallel with and similar to your efforts, and (ii) nothing in this Agreement restricts or prevents MySpace or FIM from creating and fully exploiting any such applications and/or Content of MySpace or FIM without any obligation to you.
7.1. You are solely responsible for your MySpace Applications and MySpace Application Content, and any material or information that you transmit to other Users and for your interactions with other Users, including without limitation, complying with all Applicable Law, the MySpace Agreement and this Apps Developer Addendum and for procuring and maintaining all necessary licenses, permissions and rights for your MySpace Application(s).
7.2. MySpace Look-and-Feel and Affiliation. You and your MySpace Application and MySpace Application Content will not, and will not permit any person, directly or indirectly, to:
7.2.1. imply inaccurate creation, affiliation, sponsorship or endorsement of you or your MySpace Application by MySpace, FIM or any site or service owned, controlled or operated by FIM (each a “FIM Property”), for example, “Tom’s apps,” “MySpace #1 movie app,” “official MySpace application,” or "Special Offer from Tom” or by using “MySpace,” “My,” “Space,” “FIM,” “Fox” or any variations, abbreviations or misspellings of the foregoing in your MySpace Application’s name or URL to the right of the top level domain;
7.2.2. replicate, replace or create a MySpace Application substantially similar to the MySpace Services in whole or in part, including, without limitation, MySpace Music, MySpace Video, MySpace advertising services or MySpace mobile services;
7.2.3. mimic or otherwise be similar to the look and feel of any FIM Property;
7.2.4. use the copyrighted materials of, or otherwise mimic or be similar to the, content, navigation, service messaging or functionality of any MySpace Service or other FIM Site;
7.2.5. falsely lead a User to believe he or she is interacting directly with MySpace or FIM; or
7.2.6. except as explicitly permitted herein, use any registered or unregistered trademarks, service marks, corporate logo, URL or other indicia of origin (“Marks”) of MySpace or FIM, whether in written format or graphics (“MySpace Marks”).
7.3. Third Party Rights. You and your MySpace Application and MySpace Application Content will not, and will not permit any person, directly or indirectly, to:
7.3.1. remove, obscure, or alter any identification, watermark or other notice, including, without limitation, of patent, copyright, trademark or other proprietary right appearing on or contained within the MySpace Services, including, without limitation, the MySpace Apps Developer Platform;
7.3.2. violate the privacy rights, publicity rights, copyrights, trademark, contract rights or any other rights of any person; [Note that even if you lawfully possess a copy of the content which you are uploading (e.g., because you purchased a copy of a photo), this alone does not give you the right to lawfully upload this copy to the MySpace Services or a MySpace Application];
7.3.3. use another person's or entity's trademark, service mark, slogan, logo, brand name, company name or other identifier unless such party grants prior permission or as otherwise permitted by law;
7.3.4. include a photograph or image of another person without that person's consent;
7.3.5. contain any type of multi-media unless properly licensed for this specific use;
7.3.6. use any Marks, including without limitation, the MySpace Marks in a manner that would tarnish, dilute or otherwise impair the Mark owner’s right in and to such Marks; or
7.3.7. impose or purport to impose any obligation or grant any right, power or authority to yourself or any other person that would be unlawful or otherwise inconsistent with the MySpace Agreement or this Apps Developer Addendum.
7.4. Funtionality, User Experience and Security. You and your MySpace Application(s) and MySpace Application Content will not, and will not permit any person, directly or indirectly, to:
7.5. MySpace Applications must:
7.6. MySpace Profile and Homepage.
7.6.1. Any portion of your MySpace Applications and MySpace Application Content that will appear on a MySpace Profile or MySpace Homepage will not, and will not permit any person, directly or indirectly, to contain or create SCRIPT tags pointing to external sources, CSS, or IFramed content.
7.6.2. You and your MySpace Application(s) and MySpace Application Content will not permit any User to edit HTML which may be rendered on a MySpace Profile or MySpace Homepage.
7.7. User Information Display. You and your MySpace Application(s) and MySpace Application Content will not, and will not permit any person, directly or indirectly, to:
7.8. Storage and Export of Data. Unless data is otherwise designated in writing by MySpace, you and your MySpace Application(s) and MySpace Application Content will not, and will not permit any person, directly or indirectly, to:
7.8.1. export any User Information; or
7.8.2. cache any User Information or other MySpace Content for more than twenty-four (24) hours and must cease using and delete any User Information or other MySpace Content within twenty-four (24) hours after the time which you obtained such data (including, without limitation, any information that may be used on mobile devices).
7.9. Collecting Payment and Promotional Offers. If you or your MySpace Application collects or uses or directs the User to a service to collect (each such service a “Payment Service”) any payment or account information or other value (including, without limitation, information from the User in connection with an offer for value) from Users you and the Payment Service(s) must comply with the then current rules and regulations of all payment networks you use and the Payment Card Industry Data Security Standards available at http://www.pcicomplianceguide.org/pci-basics.html. Such collection of payment or account information may not occur on a MySpace Profile, User’s MySpace Homepage or any page within the MySpace Website. However, you may collect such information on your MySpace Application Canvas Page if the Canvas Page is hosted outside of the MySpace Website (e.g., IFRAME displaying information from a non-MySpace website) or link to a page outside of the MySpace Website for such collection (so long as such link otherwise complies with this Apps Developer Addendum and the MySpace Agreement). The failure of a Developer, Payment Service or MySpace Application to provide a User with services, product or other value for which the User has paid or otherwise provided value to the Developer, Payment Service or MySpace Application may result in immediate suspension or deletion of the related MySpace Application(s), suspension of user install functionality for the related MySpace Application(s) and/or permanent suspension of such Developer’s or Payment Service’s access to the MySpace Apps Developer Service, at MySpace’s sole discretion. In addition, you and your MySpace Application and, if applicable, the Payment Service must clearly obtain a user’s explicit consent to any payment or offer and conspicuously, clearly and accurately disclose (i) that any payment collection is directly by you and if applicable, the Payment Service, and not MySpace or FIM and that you are solely responsible for the provision of the item or services; (ii) the terms of purchase or collection, including, without limitation, the item or services purchases and the duration of use for the item or service, including any renewal terms; and (iii) a policy and mechanism for refund in appropriate circumstances (i.e. if the item or services do not function as promised or the duration of use is not met). For the avoidance of doubt, you and your MySpace Application(s) may not contain, link to or otherwise promote opt-out offers with hidden renewals and the failure to comply with this prohibition may result in immediate suspension or deletion of the related MySpace Application(s), suspension of user install functionality for the related MySpace Application(s) and/or permanent suspension of your access to the MySpace Apps Developer Service, at MySpace’s sole discretion.
7.10. Customer Service. Customer service is a very important part of your responsibilities as a Developer. Note that repeat User complaints and/or failure to adhere to the above requirements may result in immediate suspension or deletion of the related MySpace Application(s), suspension of the user install functionality for the related MySpace Application(s) and/or permanent suspension of your access to the MySpace Apps Developer Service, at MySpace’s sole discretion. You and your MySpace Applications must:
7.11. Application Communications (e.g., Application Notifications and Application Invites).
7.12. Mobile Applications. In addition and without limiting the generality of this Apps Developer Addendum, any MySpace Application for use on mobile devices must:
8.1. Please select the subject matter and content of your MySpace Application carefully. Each MySpace Application and all MySpace Application Content must comply with (i) this Apps Developer Addendum, (ii) the MySpace Agreement (including, without limitation, the content and activity restrictions set forth in Sections 7 and 8); and (iii) all Applicable Law. MySpace reserves the right, in its sole discretion to review prior to posting, reject, refuse to post or remove any MySpace Application or any MySpace Application Content or to restrict, suspend or terminate your access to all or any part of the MySpace Apps Developer Service at any time, for any or no reason, with or without prior notice, and without liability. MySpace Applications which have been posted to the MySpace Services may not be changed substantially from their original purpose and functionality. If a MySpace Application has been posted to the MySpace Services, such application’s code may be updated only to fix bugs and provide enhancements to existing application functionality. Excessive, irregular, and/or large changes in a posted MySpace Application’s code may result in suspension or deletion of that application. In addition, if your MySpace Profile is removed or your access is restricted, suspended, or terminated to any other MySpace Service for any or no reason, your MySpace Application(s) and/or your MySpace Application Content may be removed immediately and your access to the MySpace Apps Developer Service may be restricted, suspended, or terminated, in MySpace’s sole discretion.
8.2. You agree to expeditiously remove any MySpace Application Content upon (i) MySpace's request, or (ii) in connection with a notice of infringement as further described in Section 9 below.
8.3. Accuracy of Content. You and your MySpace Applications and MySpace Application Content (including, without limitation, Advertisements in connection with) must comply with FTC guidelines and policies, and must not otherwise be deceptive, misleading, or unfair. Your MySpace Application must have an accurate description on the application profile, gallery, and within the application itself, including appropriate icons and any application requirements (e.g., third party registration or membership to another website). If your MySpace Application or MySpace Application Content contain free offers or discounts, you must disclose all material terms and conditions relating to the free offer or special discount within the MySpace Application or MySpace Application Content. You and your MySpace Applications and MySpace Application Content must not (i) promote false or misleading claims; (ii) use "bait and switch" advertising; or (iii) use superlatives relating to your MySpace Applications that may be misleading, confusing or unsubstantiated, such as "most popular application on MySpace" (you may use general terms that a consumer understands is not a scientifically proven fact, but is advertising "puffery" such as "best in the world" or "most amazing game you will ever play"). In addition, any games or activities contained within your MySpace Application must (i) not be misleading or confusing or give a false impression that prizes may be awarded to players and (ii) have clear rules that would be easily understandable to the average User.
8.4. Prohibited Content. In addition to the rules and restrictions set forth in the MySpace Agreement and this Apps Developer Addendum, your MySpace Applications and MySpace Application Content (including Advertising) must not contain, reference, promote or link to:
8.5. Prizes. MySpace Applications and MySpace Application Content (including any Advertising) must not and must not reference, promote or link to content or services that award prizes or provide the ability to cash out, return or convert money into anything of value (e.g., gift certificates, discount coupons, etc.).
9.1. You agree to take all actions necessary to allow and assist MySpace and FIM to comply with Section 9 of the MySpace Agreement.
9.2. In addition, if a MySpace Application that you create allows Users to download, view, listen to or otherwise access or distribute content provided by other Users, you must post and implement a copyright policy that complies with the Digital Millennium Copyright Act (“DMCA”), which must include, without limitation:
9.2.1. registering an agent with the United States Copyright Office to receive notices of claimed infringement;
9.2.2. if you receive a notice of infringement, expeditiously removing or disabling access to the allegedly infringing content and if necessary, contacting the person who submitted the notice for additional information;
9.2.3. the adoption and implementation of a policy that provides for the termination, in appropriate circumstances, of repeat infringers; and
9.2.4. including the following statement on any page of your MySpace Application or other interface through which users can upload or otherwise make third party content available: “By making any content available through this application, you represent and warrant (i) that you own all content posted by you on or through this application or otherwise have the rights necessary to use such content for purposes of the application and (ii) including your content through this application does not violate the privacy rights, publicity rights, copyrights, trademarks, patents, contract rights or any other rights of any person or entity or any law or regulation. Even if you lawfully possess a copy of the content which you are uploading (for example, you purchased a copy of a photo), this alone does not give you the right to include this content in this application.”
9.3. A sample copyright policy is provided here (“Sample Policy”) for your reference. If you wish to use the Sample Policy, please fill in all necessary information before posting it as your copyright policy. You must post your copyright policy on a page of your MySpace Application and include a link to the policy on each page of your MySpace Application or MySpace Application Content which allows viewers to download, view, listen to or otherwise access or distribute content. Please note that the Sample Policy is provided for reference purposes only. MySpace’s provision of the Sample Policy does not constitute legal advice, and MySpace does not represent or warrant that your adoption and implementation of this policy will ensure safe harbor protection under the DMCA. You are solely responsible for complying with all Applicable Law, including copyright laws. For more information on copyright and the DMCA please go to http://developer.myspace.com/community/myspace/faq.aspx#copyright or http://www.copyright.gov/.
10.1. You agree to implement and comply with standards of privacy and confidentiality for the collection, use, sharing and storage of any data related to any User, including without limitation any User Information, that are at least as stringent and user-favorable as the standards set forth in the MySpace privacy policy. You may only collect personally identifiable information (“PII”) from a User if that User “opts-in” to such collection after you have clearly disclosed that the information is being collected directly by you, and not by MySpace or FIM and have directed the User via link to your privacy policy. You are prohibited from using any data related to MySpace Users which you access or collect or are provided in connection with your MySpace Application other than as expressly provided in this Apps Developer Addendum and from providing such data to any third party, including for the purpose of Advertising.
10.2. The MySpace Apps Developer Service includes certain restrictions on data access meant to protect User privacy and gives Users the ability to control access to privacy settings for their data (a User’s “Privacy Settings”). You hereby agree to comply with, and in no way circumvent, all such data access restrictions set by MySpace (including, without limitation, based on User age) and the User’s Privacy Settings and to reflect updates to any such restrictions and settings as promptly as possible. You must provide Users with explicit, clear, accurate and timely notice about how your MySpace Application will use User Information. If a User opts-in to share User Information related to such User with your MySpace Application, you may only use such user Information as explicitly authorized by such User and agree that you will not, and will not permit any person, directly or indirectly to, circumvent or modify such User’s Privacy Settings. If your MySpace Application enables a User to upload photos to the MySpace Services, at each upload opportunity you must display to the User and obtain the User’s consent to the privacy level that will apply to the photos on the MySpace Services using the following setting choices: “Me – Albums that are private;” ‘Friends Only – Albums visible to only friends;” and “Everyone – Albums visible to everyone” and provide the User’s selected settings to MySpace with the upload of the photos to the MySpace Services. Notwithstanding the foregoing, if your MySpace Application includes an automatic background synchronization of photos to the MySpace Services, you may display to the User and obtain the User’s consent to the privacy settings above upon the User opting in to the automatic synchronization function and do not need to prompt the User for consent upon the automatic synchronization; provided that you (i) have clearly explained to the User that photo synchronization from your MySpace Application to the MySpace Services will occur automatically and obtained the User’s opt in to such synchronization; and (ii) at all times your MySpace Application provides the User with an easily accessible and understandable way to change the User’s photo privacy settings (consistent with the language above) and to allow the User to effective immediately opt out of the synchronization.
10.3. At the reasonable request of MySpace, you will promptly provide MySpace with information about a particular User of your MySpace Application and will cooperate with law enforcement and other regulatory agencies in order to: (i) protect or defend the legal rights or property of MySpace, FIM, or other companies within or affiliated with the News America Group or their employees, agents and contractors; to (including enforcement of our agreements); (ii) protect the safety and security of Users of the MySpace Services; to or members of the public including acting in urgent circumstances; (iii) protect against fraud or for risk management purposes; or to (iv) comply with the law or legal process.
You hereby represent and warrant that:
11.1. you have the right, power and authority to enter into the MySpace Agreement and this Apps Developer Addendum and to perform the acts required of you hereunder and it will be enforceable against you and without limiting the foregoing, you represent and warrant that you are at least 18 years old, or if under 18, you have obtained your parent’s or legal guardian’s permission to use the MySpace Apps Developer Service;
11.2. your MySpace Application, your entrance into the MySpace Agreement and this Apps Developer Addendum and performance of your obligations hereunder or the rights you’ve granted to MySpace hereunder, do not and will not violate any other agreement or legal obligation to which you are bound;
11.3. any and all activities you undertake in connection with the MySpace Agreement and this Apps Developer Addendum will be performed in compliance with all Applicable Law and your use of the MySpace Apps Developer Service is solely for lawful purposes; and
11.4. your MySpace Application and MySpace Application Content will at all times comply with the terms of the MySpace Agreement and this Apps Developer Addendum.
You hereby acknowledge and agree that:
12.1. MySpace reserves the right at any time and for any reason to modify, limit, suspend or discontinue the MySpace Apps Developer Service, in whole or in part, with or without notice and MySpace will not be liable to you or any other party for any such modification, limitation, suspension or discontinuance.
12.2. Your MySpace Applications and MySpace Application Content may be placed by MySpace or its Users anywhere on any MySpace Service or FIM Properties. MySpace does not guarantee that your MySpace Application will be placed in, or available through, any part of the MySpace Website, nor do we guarantee that your MySpace Application will appear in a particular position. MySpace reserves the right to limit or deny your access to Users or MySpace Profiles in its sole discretion.
12.3. MySpace has no obligation to provide you with customer support or software upgrades, enhancements, or modifications to the MySpace Apps Developer Service (collectively, “Support”). However, if MySpace elects at any time to provide you with Support, it may subsequently terminate the Support at any time without notice to you for any or no reason.
12.4. You are solely responsible for, and MySpace has no responsibility or liability of any kind for, the development, operation, security, Support and maintenance of your MySpace Applications and MySpace Application Content. Any data or metrics that may be presented to you in connection with the MySpace Apps Developer Service ("MySpace App Metrics") are provided to you for informational purposes only as part of the MySpace Services and in MySpace’s sole discretion. MySpace is not responsible for and makes no warranties, express or implied, as to the security, accuracy, completeness or reliability of the MySpace App Metrics. Your use of the MySpace App Metrics, including any reliance on any opinion, advice, statement, memorandum, or information contained therein, shall be at your sole risk.
You agree to indemnify, defend and hold MySpace, its subsidiaries and affiliates, and their respective officers, directors, 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 (i) your use of the MySpace Services in violation of the MySpace Agreement or this Apps Developer Addendum; (ii) a breach of the MySpace Agreement or this Apps Developer Addendum and/or any breach of your representations and warranties set forth in the MySpace Agreement or this Apps Developer Addendum; and/or (iii) any MySpace Application, MySpace Application Content or other Content that you post on or through the MySpace.
From time to time MySpace may conduct private and/or public beta tests (each a “Beta”) of new features or versions of the MySpace Apps Developer Service. If you choose to register for a Beta, your participation may be subject to additional terms. You agree that all feedback you record or provide to MySpace in connection with your participation shall be the property of MySpace.
You may promote your MySpace Application, however you may not issue any press release or other publicity statement or promotional materials using any MySpace Marks or implying endorsement by or affiliation with Myspace without first obtaining the prior written consent of MySpace; provided that you may factually state that your MySpace Application is a “MySpace application” or an application for use on MySpace (so long as you are in full compliance with the terms of the MySpace Agreement and Apps Developer Addendum). MySpace reserves the right to issue publicity and promotional materials mentioning and/or describing the MySpace Apps Developer Service, MySpace Applications and/or Developers.
16.1. You agree and acknowledge that MySpace has the right to verify your compliance with the MySpace Agreement and this Apps Developer Addendum (and you will not interfere with MySpace’s ability to do so), including without limitation, by submitting user information that does not relate to any actual person through your MySpace Application or crawling or otherwise monitoring your MySpace Application. In addition, at MySpace’s reasonable request you will provide MySpace with information and/or other materials, and if any of your MySpace Applications are downloadable, including, without limitation, on a mobile or other wireless device, you will provide MySpace with a copy of such downloadable MySpace Application(s) and any supporting documentation.
16.2. You understand that MySpace is a subsidiary of FIM, and agree that FIM and MySpace use the MySpace Website and the MySpace Services to advertise their respective products and services. MySpace may assign any of its rights or obligations under this Apps Developer Addendum, in whole or in part, to any affiliate, including without limitation, to FIM.
16.3. If you breach this Apps Developer Addendum by using the User Information other than as authorized under this Apps Developer Addendum, you acknowledge that you will have caused substantial harm to MySpace, but that the amount of such harm would be extremely difficult to ascertain with certainty. As a reasonable estimation of such harm, in addition to any other legal remedies which may be available to MySpace, you agree, (i) to pay MySpace $100 for each MySpace Profile referenced in the User Information impacted by such breach and (ii) if your access to the MySpace Apps Developer Service is suspended or terminated in connection with such breach and you, your employees or affiliates gain access to the MySpace Apps Developer Service through another MySpace Profile, you agree to pay MySpace $100 for each data request made by any MySpace Application established under such MySpace Profile. In addition, you acknowledge that MySpace may refer such any such matter to law enforcement and regulatory agencies, in its sole discretion. For the avoidance of doubt, this provision 16.3 will survive any expiration or termination of the MySpace Agreement and/or this Apps Developer Addendum.
16.4. Upon becoming a Developer, you agree to promptly provide MySpace with a primary and secondary point of contact, available 24/7/365 for the MySpace security and abuse teams to contact for urgent response and assistance in promptly resolving any issues or complaints regarding your MySpace Application. Upon becoming aware of any illicit conduct or violation of the MySpace Agreement in connection with or which could impact the MySpace Services (including, without limitation, the MySpace Apps Developer Service), including without limitation, spam, phishing, social engineering, identity theft and/or any conduct violative of intellectual property rights, you agree to (i) notify MySpace immediately at abuse@myspace.com and (ii) preserve all evidence of such conduct or violation, including, without limitation, IP address logs, User information, samples of offending messages and any other relevant information. You agree that MySpace may provide your contact information to third parties, including, without limitation, law enforcement upon request.
16.5. Except where otherwise specified, the rights and remedies granted to a party under this Addendum are cumulative and in addition to, and not in lieu of, any other rights or remedies which the party may possess at law or in equity.
16.6. This Apps Developer Addendum is accepted and your acceptance of the MySpace Agreement is affirmed upon your use of the MySpace Apps Developer Service. This Apps Developer Addendum and the MySpace Agreement constitute the entire agreement between you and MySpace regarding the use of the MySpace Apps Developer Service. The failure of MySpace to exercise or enforce any right or provision of this Apps Developer Addendum or the MySpace Agreement shall not operate as a waiver of such right or provision. The section titles in this Apps Developer Addendum are for convenience only and have no legal or contractual effect. This Apps Developer Addendum operates to the fullest extent permissible by law. If any provision or part thereof of this Apps Developer Addendum or the MySpace Agreement is unlawful, void or unenforceable, that provision or part thereof will be deemed modified or severed to the extent necessary to make such provision enforceable in accordance with its intended purpose and will not affect the validity and enforceability of any other provisions or parts thereof. This Apps Developer Addendum shall not be deemed to create any joint venture, partnership or agency between the parties hereto. It is understood that each party to this Apps Developer Addendum shall be independent of the other and that neither party shall have the right or authority to bind the other party.
Please contact us at: developerrelations@myspace-inc.com with any questions regarding this Apps Developer Addendum or the MySpace Agreement.
