Welcome to the Hottrix, LLC dba Premier App Shop ("PAS" or Hottrix, We or Us ) Website located at, and all references on a mobile device accessible at or referenced through www.premierappshop.com (the "Website"). Please review the following terms and conditions concerning your ( You or Your ) use of the Website. By accessing, using or downloading any materials (including but not limited to Premier Apps) from the Website, you agree to follow and be bound by these terms and conditions (the "Terms"). If you do not agree with these Terms, you may not use this Website or any applications or software originating therefrom. Except where expressly provided otherwise, all applications or software (collectively Content ) you download from the Premier App Shop constitutes an individual NON- TRANSFERABLE license to use said content for your personal use. You are expressly forbidden from transferring any rights to use the Content to other persons. You are NOT purchasing a copy of the Content, solely a license that is personal to You. As such, the first-sale doctrine does not apply. Forbidden activity includes, but is not limited to transferring your mobile device to another person and then reinstalling Content on another device. If you wish to transfer ownership in a mobile device containing Hottrix Content, you must delete any copies and all references to any Content licensed to You per these Terms. If you do not do so, then you may be liable for violation of Copyright law. Except where expressly provided otherwise, you are not buying a copy of the Content, solely the personal license enumerated herein. This personal license is only for personal non-commercial use. If you wish to use the Content commercially, you need to obtain a separate license from Hottrix. See the legal contact information, infra. GENERAL USE PROVISIONS All materials provided on this Website, including but not limited to information, documents, products, logos, graphics, sounds, images, software, Content, and services ("Materials"), are provided either by Hottrix or by its respective third party manufacturers, authors, developers and vendors ("Third Party Providers" or TPPs ) and are the copyrighted work of Hottrix and/or its Third Party Providers. Except as stated herein, none of the Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means, without the prior express written permission of Hottrix or the Third Party Provider. Also, you may not "mirror" any Materials contained on this Website on any other server without Hottrix s prior express written permission. Except where expressly provided otherwise by Hottrix, nothing on this Website or in the Premier App Shop (or anything accessible through the PAS) shall be construed to confer any license under any of Hottrix s or any Third Party Provider's intellectual property rights, whether by estoppel, implication, or otherwise. You acknowledge sole responsibility for obtaining any such licenses. See the "Legal Contact Information" 1:22 PM 1
section below if you have any questions about obtaining such licenses. Materials provided by Third Party Providers have not been independently reviewed, tested, certified, or authenticated in whole or in part by Hottrix or its TPPs except as stated explicitly therein. Hottrix does not provide, sell, license, or lease any of the Materials other than those specifically identified as being provided by Hottrix. Hottrix hereby grants you permission solely to display and download materials from this Website, provided that: (1) the use of such Materials is solely for use in accordance with these Terms and will not be copied or posted on any networked computer, broadcast in any media now known or hereafter devised, and (2) the Materials are not modified in any way. This permission terminates automatically without notice if you breach any of these terms or conditions. Upon termination, you shall immediately destroy any downloaded Materials. Any unauthorized use of any Materials contained on this Website may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes. It is your obligation to comply with all applicable State, Federal and International laws. LINKS TO THIRD PARTY SITES This Website may contain links to websites controlled by parties other than Hottrix and has contact from TPP s to which Hottrix has control. Hottrix is not responsible for and does not endorse or accept any responsibility for the contents or use of these third party websites. Hottrix and its Third Party Providers are providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Hottrix of the linked website. It is your responsibility to take precautions to ensure that whatever you select for your use is free of viruses or other items of an intrusive nature and/or that they are correct and of a lawful nature. You can review our privacy practices at: www.premierappshop.com/privacy.html. SUBMISSIONS Except where expressly provided otherwise by Hottrix, all comments, feedback, information or materials submitted to Hottrix through or in association with this Website or the TPPs ("Submissions") shall be considered non-confidential. While you may maintain the copyright to your Submissions, by providing such Submissions to Hottrix, you agree, at Hottrix s option, to either (1) assign to Hottrix all worldwide rights, title and interest in copyrights and other intellectual property rights to the Submissions, (2) grant an exclusive, nonrevocable, perpetual, assignable and transferrable, worldwide, license to Hottrix to use and license others to use, the intellectual property embodied in the Submissions in any way it deems fit, including but not limited to, making derivative works therefrom, or (3) grant a nonrevocable, perpetual, assignable and transferrable, worldwide, license to Hottrix to use and license others to use, the intellectual property embodied in the Submissions in any way it deems fit, including but not limited to, making derivative works therefrom, as consideration in exchange for the use of this Website. Hottrix shall be free to use and/or disseminate such Submissions on an 1:22 PM 2
unrestricted basis for any purpose. You acknowledge that you are responsible for the Submissions that you provide, and that you, not Hottrix, have full responsibility for the Submissions, including their legality, reliability, appropriateness, originality and copyright as well as compliance with all applicable rights privacy, publicity and attribution, as applicable, in all jurisdictions worldwide. You agree that by submitting your credit card, Hottrix has authorization to charge it and You agree to pay for all Content and Materials which you purchase through the PAS and other Hottrix websites besides this Website. You also agree to allowing Hottrix store your credit card and related information so as to make it more convenient for You to use the PAS and other Hottrix websites besides this Website, in the future. DISCLAIMER EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY HOTTRIX, THE MATERIALS ON THE WEBSITE ARE PROVIDED "AS IS." HOTTRIX HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. HOTTRIX MAKES NO REPRESENTATIONS, WARRANTIES, GUARANTIES, OR CONDITIONS AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY, OR COMPLETENESS OF ANY OF THE MATERIALS CONTAINED ON THE WEBSITE OR AS TO THE QUALITY OR WORKMANSHIP OF ANY PRODUCTS REVIEWED THEREON. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY HOTTRIX, THE WEBSITE AND THE MATERIALS ARE PROVIDED TO YOU ON AN "AS IS" BASIS. EXCEPT AS PROVIDED IN THE PRIVACY POLICY, LISTED AT www.premierappshop/privacy.html ( PRIVACY POLICY ), HOTTRIX DISCLAIMS ANY PRIVACY RIGHTS AND DISCLAIMS ANY WARRANTY AS TO PRIVACY AND YOU AGREE THAT YOU HAVE NO REASONABLE EXPECTATION OF PRIVACY WHILE USING THE WEBSITE, EXCEPT FOR THOSE RIGHTS SPECIFICALLY ENUMERATED IN THE PRIVACY POLICY. LIMITATION OF LIABILITY EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS HEREIN, TO THE EXTENT ALLOWED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY OR A THIRD PARTY PROVIDER EXCEED $20 IN A DISPUTE INVOLVING AN END-USER. IN THE EVENT OF A DISPUTE BETWEEN HOTTRIX AND A THIRD PARTY PROVIDER, HOTTRIX S LIABILITY SHALL NOT EXCEED $20 BUT THE THIRD PARTY PROVIDER S LIABILITY SHALL NOT BE LIMITED. IN NO EVENT SHALL HOTTRIX OR THE THIRD PARTY PROVIDERS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, 1:22 PM 3
OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE WEBSITE OR ANY MATERIALS, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR THE THIRD PARTY PROVIDER HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY IN THE EVENT OF CUSTOMER'S BREACH OF ANY CLAUSE OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO CLAIMS RELATED TO ITS INDEMNITY OBLIGATIONS. THIS PARAGRAPH SHALL NOT AFFECT THE RIGHTS LISTED BELOW IN THE SECTION TITLED INDEMNITIES. REPRESENTATIONS AND WARRANTIES Each party represents and warrants that it has the power and authority to enter into this Agreement. You represent that you are at or over the age of 18 and have legal capacity to enter into these Terms. INDEMNITIES You shall defend and indemnify Hottrix and its Third Party Providers against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) finally awarded against Hottrix or its Third Party Providers by a court of competent jurisdiction arising out of or in connection with a claim by a third party related to You. Hottrix shall have no indemnification obligation or other liability for any claim of infringement arising from (a) use of the Website or the Materials other than in accordance with this Agreement; (b) the combination of the Website and the Materials with any other products, services, or materials; or (c) any third party products, services, or materials. CUSTOMER RESPONSIBILITIES You will comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of the Materials, including without limitation those related to data privacy, international communications, driving safety and the exportation of technical or personal data or software from locations other than the location from which Hottrix controls and operates the Website. You will ensure that any use of the materials on your mobile device by you and any other person who uses your mobile device is in accordance with the terms of this Agreement. NOTICES Hottrix may give notice by means of a general notice on the Website, electronic mail to Your e-mail address on record in Hottrix's account information, or by written communication sent by first class mail or pre-paid post. Notice to you via electronic means shall be deemed to be effective immediately upon posting or delivery, whichever is first. You may give notice to Hottrix at any time by letter sent by confirmed facsimile 1:22 PM 4
to Hottrix, fax number 702-643 0777, or by letter delivered by registered mail with return receipt to Hottrix at the address set forth below. All notices to Hottrix shall be deemed to have been given three days after mailing or 24 hours after sending by confirmed facsimile or email. Furthermore, Hottrix complies with the Digital Millennium Copyright Act ( DMCA ). Any notices given pursuant to the DMCA shall be given to Hottrix s designated agent Jason H. Fisher, via email at legal@premierappshop.com or via registered US mail sent return receipt to DMCA Compliance Agent, Hottrix, LLC, 7500 W. Lake Mead Blvd., Las Vegas, Nevada 89129. GENERAL PROVISIONS Any action related to this Agreement will be governed by California law and controlling U.S. Federal law. No choice of law rules of any jurisdiction will apply. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California and to arbitration as stated herein. At the request of Hottrix or You, any controversy or claim related to this Agreement ("Claim") shall be resolved by arbitration in accordance with the Federal Arbitration Act (Title 9, U. S. Code) (the "Act"). The Act will apply even though this Agreement provides that it is governed by the laws of California. Arbitration proceedings will be determined in accordance with the Act, the rules and procedures for the arbitration of financial services disputes of JAMS/Endispute, LLC, a Delaware limited liability company or any successor thereof ("JAMS"), except that discovery in said arbitration shall be limited in scope to the specifics of liability on the Claim, and any discovery related to damages calculations or any financials shall be withheld until after liability has been decided by the arbitrator(s). In the event of any inconsistency between the JAMS rules and this paragraph, the terms of this paragraph shall control. The arbitration shall be administered by JAMS and conducted in Los Angeles, California. All Claims shall be determined by one arbitrator; however, if Claims exceed Five Million Dollars, upon the request of either Hottrix or You, the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within ninety (90) days of the demand for arbitration and close within ninety (90) days of commencement and the award of the arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additional sixty (60) days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and enforced. The arbitrator(s) will have the authority to decide whether any Claim is barred by the statute of limitations and, if so, to dismiss the arbitration on that basis. For purposes of the application of the statute of limitations, the service on JAMS under applicable JAMS rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s). The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Agreement. This paragraph does not limit the right of Hottrix to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or nonjudicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of 1:22 PM 5
sale rights, or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies. This Agreement represents the Parties' entire understanding relating to the use of the Website and supersedes any prior or contemporaneous, conflicting or additional, communications except as stated herein. Hottrix reserves the right to change these Terms or its policies relating to the Materials at any time, and such changes will be effective upon being posted herein. You agree to check these Terms on each day before use of the Website to confirm your continued agreement with these Terms. Your continued use of the Website after any such changes shall constitute Your consent to such changes. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Hottrix and You as a result of these Terms or use of the Website. You may not assign this agreement without the prior written approval of Hottrix. Any purported assignment in violation of this section shall be void. Hottrix reserves the right to use Third Party Providers in the provision of the Materials hereunder. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretation, its performance, or the like, the prevailing party shall be awarded reasonable attorneys' fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the prosecution or defense of that controversy or dispute. Any rights not expressly granted herein are reserved by Hottrix. GENERAL This Website may include inaccuracies or typographical errors. Hottrix and the Third Party Providers may make improvements and/or changes in the products, services, programs, and prices described in this Website at any time without notice. Hottrix may periodically make changes to the Website. INTELLECTUAL PROPERTY NOTICES Elements of the Website are protected by trade dress and other laws and may not be copied or imitated in whole or in part. No logo, graphic, sound or image from the Website may be copied or retransmitted unless expressly permitted by Hottrix. Premier App Shop, PAS, premierappshop.com, Premier APP, Hottrix, and/or other PAS identifiers referenced herein are trademarks of Hottrix, LLC, and may be registered in certain jurisdictions. Other product names, company names, marks, logos, and symbols may be trademarks of their respective owners. Copyright 2009 Hottrix, LLC, 7500 W. Lake Mead Blvd., Las Vegas, Nevada 89129 1:22 PM 6
LEGAL CONTACT INFORMATION If you have any questions about these Terms, or if you would like to request permission to use any Materials, please contact Hottrix at 877-HOTTRIX or legal@premierappshop.com. 1:22 PM 7