TERMS OF USE

BY CLICKING THE “REGISTER” BUTTON THROUGH THE REGISTRATION PROCESS, BY ACCESSING THE MEDIAMERX.COM WEBSITE (“SITE”) AND THE SERVICES AVAILABLE AT THE SITE (TAKEN TOGETHER, THE “SERVICE”), OR BY UPLOADING, POSTING OR PROVIDING ANY CONTENT TO THE SERVICE, YOU OR THE ORGANIZATION YOU REPRESENT ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE TERMS OF USE (“TERMS OF USE”).  THE SERVICE IS OWNED AND OPERATED BY MEDIAMERX, INC. (MEDIAMERX).  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THESE TERMS OF USE, CLICK THE “DO NOT ACCEPT” BUTTON, DO NOT ACCESS THE SERVICE AND/OR DO NOT UPLOAD, POST OR PROVIDE ANY CONTENT.  IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.  YOUR PURCHASE ORDER OR SIMILAR TERMS SHALL NOT APPLY TO THESE TERMS OF USE.  IF YOU ARE EXECUTING THESE TERMS OF USE ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU HAVE AUTHORITY TO DO SO.  YOU CERTIFY THAT IF YOU ARE AN INDIVIDUAL (i.e., NOT A CORPORATION) YOU ARE AT LEAST 18 YEARS OLD.

MediaMerx reserves the right at any time to change the terms, conditions and notices under which its Service is offered, including but not limited to these Terms of Use, by posting such changes online.  It is your responsibility to refer to and comply with these updated terms and conditions upon accessing the Site. Your continued use of the Service after changes are posted constitutes your acceptance of these Terms of Use as modified.  MediaMerx may refuse to offer the Service to any person or entity and may change its eligibility criteria, at any time, in its sole discretion.  If these Terms of Use are not accepted in full, you do not have permission to access the Service or to upload, post or provide Content to the Service and you should cease using the Service immediately. If there is any conflict between these Terms of Use and rules and/or specific terms of use appearing on the Site relating to specific material, then the latter shall prevail.

1.                    Definitions.

a.                    “Content” means audio, video, multimedia, images, graphics, statistics, text, information, data and other content uploaded or posted to the Service by you or that you provide MediaMerx with access to (i.e., via a link to a channel feed).

b.                   “Distribution Partner” means any internet service provider, wireless operator, cable operator or other third party that enters into an agreement with MediaMerx for the purpose of receiving access to content (including, but not limited to, the Content) and making such content available to users. 

c.                    “Logos” means trademarks, service marks, logos and other proprietary rights notices in connection with the Content.

2.                    License.  You hereby grants to MediaMerx a non-exclusive, worldwide, royalty-free right and license:  (i) to access, use, reproduce, distribute, cache, replicate, transmit, modify and display Content in connection with the Service; and (ii) to use, reproduce and display Logos in connection with the Service.  MediaMerx shall have control over what Content is distributed to its Distribution Partners.  You acknowledge that the Content may be offered to Distribution Partners and/or users with other third party content.

3.                    Rules and Conduct.  The Service (including without limitation, any content, materials or other information made available via the Service) is provided only for your use for internal business purposes.  Any unauthorized use of the Service, including without limitation, any commercial use (such as, for example, resale to third parties), is expressly prohibited.  As a condition of use, you promise not to use the Service for any purpose that is unlawful or prohibited by these Terms of Service, or any other purpose not reasonably intended by MediaMerx.  You agree to abide by all applicable local, state, national and international laws and regulations.  By way of example, and not as a limitation, you agree not to (a) take any action or (b) upload, post, submit or otherwise distribute or facilitate distribution of any Content, that:

·         is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, profane or which otherwise violates the Terms of Service;

·         infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any party;

·         constitutes unauthorized or unsolicited advertising, junk or bulk e-mail ("spamming");

·         imposes an unreasonable or disproportionately large load on MediaMerx's computing, storage or communications infrastructure, or attempts to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or otherwise;

·         contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data or other information of MediaMerx or any third party; or

·         harvests or collects any information from the Site; or

·         impersonates any person or entity, including any employee or representative of MediaMerx.

MediaMerx has no obligation to monitor the Service or any use thereof.  However,  MediaMerx reserves the right at all times and without notice to monitor, review, retain or disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental (including law enforcement) request and to remove any Content that violates these Terms of Use or is otherwise objectionable as determined in the sole discretion of MediaMerx. 

4.                    Third Party Sites.  The Service may permit you to link to other websites on the Internet, and other websites may contain links to the Site.  These other websites are not under MediaMerx’s control, and you acknowledge that MediaMerx is not responsible for the accuracy, legality, appropriateness or any other aspect of the content or function of such websites.  The inclusion of any such link does not imply endorsement by MediaMerx or any association with its operators.

5.                    Advertising Revenue Share. 

a.                    You may “opt-in” to MediaMerx’s advertising program to have advertisements run against Content (i.e., instream or adjacent to such Content).  For clarity, advertisements run by MediaMerx on the Service, including on any page of the Site that includes Content, that are not run instream or adjacent to the Content shall not be deemed to have been “run against Content.” 

b.                   If you opt-in to MediaMerx’s advertising program, if any Content provided by you receives more than 50,000 views and if MediaMerx runs any advertisements against such Content, MediaMerx shall pay you fifty percent (50%) of the adjusted gross advertising revenues that are actually received by MediaMerx generated in connection with such Content.  MediaMerx reserves the right to withhold advertising payment if you are found to have used the Service in a way disallowed by these Terms of Use (including, without limitation, uploading content they do not own).  Violation of the Terms of Use automatically disqualifies a user from participation in the revenue share program.  Adjusted gross advertising revenues means gross advertising revenues less reasonable and customary advertising-related costs actually paid by MediaMerx. These advertising-related costs may include ad serving fees and commissions actually paid.  

6.                    Ownership. 

a.                    Except for the licenses and uses permitted herein, you or its licensors shall retain all right, title and interest in and to the Content and the Logos. 

b.                   MediaMerx or its licensors shall retain all right, title and interest in and to the Service apart from the Content and Logos.  You agree that all content and materials delivered via the Service or otherwise made available by MediaMerx at the Site are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws.  Except as expressly authorized by MediaMerx in writing, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such materials or content.  Reproducing, copying or distributing any content, materials or design elements on the Site for any other purpose is strictly prohibited without the express prior written permission of MediaMerx.  Use of the content or materials for any purpose not expressly permitted in these Terms of Use is prohibited.  Any rights not expressly granted herein are reserved.

c.                    MediaMerx respects the intellectual property of others.  If you believe that your work has been copied in any way that constitutes copyright infringement, you should notify MediaMerx’s Copyright Agent.  Your notice must meet the requirements of the DMCA (17 U.S.C. § 512), including the following information:

  • Identification of the copyrighted work allegedly infringed;
  • Identification of the material that you believe is infringing your work so we may locate it on the Site;
  • Your address, telephone number and email address;
  • A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
  • A statement by you that the above information in your notice is accurate, made under penalty of perjury, and that You are authorized to act on behalf of the owner of the copyright interest involved;
  • Your signature.

 

The notice should be sent to:

 

MediaMerx, Inc.

Attn: Copyright Agent

118 East 28th Street, #901

New York, NY, 10016

 

7.                    Warranty and Disclaimer.

a.                    You represent and warrant to MediaMerx that: (i) you have all necessary rights to grant the rights and licenses granted hereunder, including, without limitation, sufficient rights to Content provided by you; (ii) you have the power and authority to enter into and perform its obligations under this Agreement; (iii) you currently have no restrictions that would impair your ability to perform its obligations under this Agreement; (iv)  Content does not and will not violate or infringe upon third party intellectual property rights; (v)  Content will not defame or otherwise injure any third party and (vi) your performance of yourobligations under this Agreement does not and will not violate or infringe upon any third party privacy or publicity rights.

b.                   THE SERVICE AND ALL MATERIALS, INFORMATION, PRODUCTS AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE ARE PROVIDED "AS IS" AND "AS AVAILABLE".  THE SERVICE IS PROVIDED WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.  MEDIAMERX, AND ITS AFFILIATES, LICENSORS AND SUPPLIERS DO NOT WARRANT THAT: (A) THE SERVICE IS TIMELY, ACCURATE, COMPLETE, RELIABLE OR CORRECT; (B) THE SERVICE WILL BE ERROR-FREE, SECURE, UNINTERRUPTED OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (C) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (D) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (E) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS.  YOUR USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK.

8.                    Confidentiality.  You agree that all business, technical and financial information you obtain from MediaMerx that is marked “Confidential” or “Proprietary,” (or, if verbally disclosed, is disclosed in such a manner that a reasonable person would understand that such information is confidential) are the confidential property MediaMerx (“Proprietary Information”).  Except as expressly allowed herein, you will hold in confidence and not use or disclose any Proprietary Information.  Upon termination and at MediaMerx’s request at any other time, you will promptly return to the disclosing party all materials and copies containing or embodying Proprietary Information.

9.                    Limited Liability. IN NO EVENT SHALL MEDIAMERX (OR ITS AFFILIATES, LICENSORS AND SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF this agreement, regardless of the form of any claim or action (whether in CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERwise), for any (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY of data, loss or interruption OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS or SERVICES, OR (C) DIRECT OR INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, EVEN IF MEDIAMERX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

10.                 Indemnity.  You shall defend, indemnify, and hold MediaMerx harmless from any liability, damages, costs and expenses, including reasonable attorneys’ fees, relating to a third party claim that is related to or in connection with your breach of any representation or warranty in the Agreement. 

11.                 Termination. 

a.                    MediaMerx may terminate your password, account (or any party thereof) or access to all or any part of the Service, and remove and discard any Content provided by you within the service, at any time, with or without cause, with or without notice, effective immediately.  MediaMerx may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice.  You agree that MediaMerx shall not be liable to you or any third party for any claims related to termination of your access to the Service. 

b.                   You may remove Content you uploaded or posted on the Service at any time. When you delete Content from the Service, such deleted Content, while not available to the viewing public and other users, will remain on the MediaMerx server until such time as you make a specific request to MediaMerx for permanent deletion of such Content from MediaMerx’s server. Such requests must be made in writing, via email, to MediaMerx customer service at the following address: support@mediamerx. When you do remove your Content, the license described above will automatically expire. We cannot guarantee that Content deleted from MediaMerx or permanently deleted from our servers will be deleted from the Web sites or systems of third parties. If you would like your Content removed and/or permanently deleted from any websites other than the Service, you will be required to contact such websites directly, and we cannot guarantee any outcome, action or result with respect to any such request by you. 

12.                 Miscellaneous.  These Terms of Service and the Service contemplated hereunder are personal to you, and are not assignable, transferable or sublicensable by you except with MediaMerx's prior written consent.  MediaMerx may assign, transfer or delegate any of its rights and obligations hereunder without consent.  All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.  If any portion of this Agreement is held to be illegal or unenforceable, that portion shall be restated, eliminated or limited to the minimum extent necessary so that this Agreement shall reflect as nearly as possible the original intention of the parties and the remainder of this Agreement shall remain in full force and effect.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA without regard to the conflicts of laws provisions thereof.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and reasonable attorneys’ fees.