This Mobile Application End User License Agreement ("Agreement") is a binding agreement between you ("End User" or "you") and On My Wave, LLC ("Company" or "On My Wave"). This Agreement governs your use of the Penless mobile application on the various application platforms from which it can be downloaded, (including all related documentation, the "App"). The App is licensed, not sold, to you.

      BY CLICKING THE "AGREE" BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD THE APP.

• License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive and nontransferable license to:

(a) download, install and use the App for your personal, non-commercial use on mobile devices owned or otherwise controlled by you ("Mobile Device") strictly in accordance with the App's documentation, unless otherwise agreed to in writing by On My Wave; and

(b) access, stream, download and use on such Mobile Device the Content and Services (as defined in Section 5) made available in or otherwise accessible through the App, strictly in accordance with this Agreement and the Terms of Use applicable to such Content and Services as set forth in Section 5.


• License Restrictions. Licensee shall not:

(a) copy the App, except as expressly permitted by this license;

(b) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the App;

(c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the App or any part thereof;

(d) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the App, including any copy thereof;

(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the App or any features or functionality of the App, to any third party for any reason, including by making the App available on a network where it is capable of being accessed by more than one device at any time; or

(f) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the App.

(g) use any robot, spider, crawler, scraper, or other automated means or interface to access the App or extract other user's information.

(h) use the App in a way that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the App, or that could damage, disable, overburden, or impair the functioning of the App.

(i) use or attempt to use another user's account, username, or password without their permission.

(j) post content that contains pornography, graphic violence, threats, hate speech, or incitements to violence

(k) probe, scan, or test the vulnerability of our Services or any system or network.

(l) engage in, encourage or promote any activity that violates the terms of this Agreement.

(m) use the App or its services for any purpose that is illegal or prohibited under the terms of this Agreement.


• Reservation of Rights. You acknowledge and agree that the App is provided under license, and not sold, to you. You do not acquire any ownership interest in the App under this Agreement, or any other rights thereto other than to use the App in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. On My Wave and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the App, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.


• Collection and Use of Your Information. You acknowledge that when you download, install or use the App, On My Wave may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the App. You also may be required to provide certain information about yourself as a condition to downloading, installing or using the App or certain of its features or functionality, and the App may provide you with opportunities to share information about yourself with others. All information we collect through or in connection with this App is subject to our Privacy Policy. By downloading, installing, using and providing information to or through this App, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.


• Content and Services. The App may provide you with access to On My Wave's website located at www.penless.net (the "Website") and products and services accessible thereon, and certain features, functionality and content accessible on or through the App may be hosted on the Website (collectively, "Content and Services"). Your access to and use of such Content and Services are governed by the Website's Terms of Use and Privacy Policy located at www.legal.penless.net/privacy.html and www.legal.penless.net/terms.html, which are incorporated herein by this reference. Accordingly, your use of this App is also governed by the Website's Terms of Use and Privacy Policy. Your access to and use of such Content and Services may require you to acknowledge your acceptance of such Terms of Use and Privacy Policy and/or to register with the Website, and your failure to do so may restrict you from accessing or using certain App features and functionality. Any violation of such Terms of Use will also be deemed a violation of this Agreement.


• Respecting Other People's Rights. On My Wave respects the rights of others, and so should you. You therefore may not upload, post, send, or store content that:
  • violates or infringes someone else's rights of publicity, privacy, copyright, trademark, or other intellectual-property right;
  • bullies, harasses, or intimidates;
  • defames; or
  • spams or solicits other App users.
  
  You must also respect On My Wave's rights. These Terms do not grant you any right to:
  
  
  • use branding, logos, designs, photographs, videos, or any other materials used in our App or through our services;
  • copy, archive, download, upload, distribute, syndicate, broadcast, perform, display, make available, or otherwise use any portion of the App, our services or the content on the App or through its services except as set forth in this Agreement;
  • use the App or its services or any content on the App for any commercial purposes without our consent.
  
  In short: You may not use the App or its services (or the content on the App) in ways that are not authorized by this Agreement, nor may you help or enable anyone else in doing so.


• Geographic Restrictions. The Content and Services are based in the state of California in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.


• Updates. On My Wave may from time to time in its sole discretion develop and provide App updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain App features and functionality. You agree that On My Wave has no obligation to provide any Updates or to continue to provide or enable any particular App features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet you may receive notice of or be prompted to download and install available Updates.

      You shall promptly download and install all Updates and acknowledge and agree that the App or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the App and be subject to all terms and conditions of this Agreement, which we may modify from time to time in our sole discretion. Each time you download an Update, it is your responsibility to review the then current terms and conditions of this Agreement, as they may have changed. If you do not agree to such terms you will be deemed to be in violation of this Agreement and you should not use the App.


• Third Party Materials. The App may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third Party Materials"). You acknowledge and agree that On My Wave is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. On My Wave does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.


• Term and Termination.

(a) The term of Agreement commences when you acknowledge your acceptance and will continue in effect until terminated by you or On My Wave as set forth in this Section 10.

(b) You may terminate this Agreement by deleting the App and all copies thereof from your Mobile Device.

(c) On My Wave may terminate this Agreement at any time without notice in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice to you if you violate any of the terms and conditions of this Agreement.

(d) Upon termination:

    (i) all rights granted to you under this Agreement will also terminate; and

     (ii) you must cease all use of the App and delete all copies of the App from your Mobile Device and account.

(e) Termination will not limit any of On My Wave's rights or remedies at law or in equity.


• Disclaimer of Warranties. THE APP IS PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APP, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APP WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.


      SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.


• Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APP OR THE CONTENT AND SERVICES FOR:


(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES

(b) DDIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APP.

      THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.


• Indemnification. You agree to indemnify, defend and hold harmless On My Wave and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, arising from or relating to your use or misuse of the App or your breach of this Agreement. Furthermore, you agree that On My Wave assumes no responsibility for the content you submit or make available through this App.


• Copyright Policy On My Wave respects the intellectual property rights of others and expects users of the App and its services to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your content has been copied in a way that constitutes copyright infringement, please provide us with the following information:
  
  
  • a physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
  • identification of the copyrighted work claimed to have been infringed;
  • identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
  • your contact information, including your address, telephone number, and an email address;
  • a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  • a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
  
        We reserve the right to remove any content alleged to be infringing without prior notice, at our sole discretion, and without liability to you. In appropriate circumstances, On My Wave will also terminate a user's account if the user is determined to be a repeat infringer. Under the U.S. Digital Millennium Copyright Act, our designated copyright agent for notice of alleged copyright infringement appearing on the Website is:
  
  On My Wave, LLC
  Attn: On My Wave Copyright Agent
  2000 E. 4th Street Suite 204
  Santa Ana, CA 92705
  Email: DMCA@penless.net
  


• Data Charges and Mobile Phones. You are responsible for any mobile charges that you may incur for using the App or our services, including text-messaging and data charges. If you're unsure what those charges may be, you should ask your service provider before using the App or our services. If you change or deactivate the mobile phone number that you used to create an account on the App, you must immediately update your account information through Settings.
• Export Regulation. The App may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the App to, or make the App accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the App available outside the U.S.


• U.S. Government Rights. The App is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the U.S. Government or any contractor therefor, you receive only those rights with respect to the App as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.


• Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.


• Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the App shall be instituted exclusively in the federal courts of the United States or the courts of the State of Ohio in each case located in Columbus and Franklin County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.


• Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.


• Entire Agreement. This Agreement, the Website Terms of Use, Website Privacy Policy and our Privacy Policy constitute the entire agreement between you and Company with respect to the App and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the App.


• Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.