EFFECTIVE DATE: May 11, 2016
CONTENT LICENSE AGREEMENT
Please read this document carefully. TN Marketing, LLC d/b/a VidStore (“VidStore”, “we”, or “us”) offers a free online video sharing platform known as Vidstore and related mobile and online services that allows content providers (“Content Provider” or “you”) to make content (“Content”) available to users for a fee (“Service”). By applying as a member and creating an account you accept these terms and conditions which form a binding agreement between you and Vidstore (“Agreement”).
BY CLICKING THE “I ACCEPT” BUTTON, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. THE TERMS OF THIS AGREEMENT MAY BE REVISED FROM TIME TO TIME. CONTINUING TO USE THE SERVICES AFTER THE POSTING OF SUCH REVISED TERMS SIGNIFIES YOUR AGREEMENT TO SUCH REVISED TERMS. YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ACKNOWLEDGE THAT YOU ARE NOT RELYING ON ANY REPRESENTATION OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT. IN ADDITION, BY CLICKING “I ACCEPT” YOU REPRESENT AND WARRANT THAT YOU ARE OVER 18 YEARS OF AGE (OR THE AGE OF MAJORITY IN YOUR STATE, IF OLDER) AND ARE AUTHORIZED TO BIND THE COMPANY OR ENTITY ENTERING INTO THIS AGREEMENT.
1. HOW TO BECOME A CONTENT PROVIDER ON THE SERVICE
Applying for access to our Service: To begin the process of becoming a Content Provider on the Service you must complete an application. We will evaluate your application and notify you of its acceptance or rejection. You will be notified by email if your application is accepted. If we reject your application, you are welcome to reapply at any time. However, if we accept your application and we later determine that your channel is unsuitable, we maintain the right to terminate this Agreement. We reserve the right to reject an applicant for any reason, including without limitation for the suitability of Content for our Channels, the similarity of the Content to other content on our Channels or for any other reason in compliance with applicable law.
Current Contact Information: You are responsible for ensuring that the information in your application or the information otherwise associated with your account, including your email address and other contact information, and the description of your Content, is at all times complete, accurate, and up-to-date. We may send notifications, approvals, and other communications relating to the Service and this Agreement to the email address then-currently associated with your Service account. All notifications, approvals, and other communications sent to that email address will be deemed received when sent, even if the email address associated with your account is no longer current so you must provide us with current contact information at all times. Vidstore may also share your contact information with Users or others who want to contact you.
United States Only: Our Service is available to Content Providers located in the United States.
Unsuitable Content: We may reject your application if we determine that your content is unsuitable. Unsuitable content includes (but is not limited to) content that may:
- promote or contain sexually explicit materials;
- promote violence or contain violent materials;
- promote or contain libelous or defamatory materials;
- promote discrimination, or employ discriminatory practices, based on race, sex, religion, nationality, disability, sexual orientation, or age;
- promote or undertake illegal activities;
- be directed toward children under 13 years of age, as defined by the Children’s Online Privacy Protection Act (15 U.S.C. §§ 6501-6506) and any regulations promulgated thereunder;
- violate any applicable laws, rules of regulations; or
- violate any intellectual property rights.
2. DESCRIPTION OF THE VIDSTORE SERVICE
Description: The Service allows you to submit video content (“Content”) to us for hosting and storing on a Content Provider branded channel on the Service (“Channel”) for users of the Service to access (“Users”). Content Provider may choose to allow Content to be available via streaming to Users who have purchased a daily, weekly, or monthly subscription or may make videos available for download for purchase. Vidstore shares with you the fees paid by Users who stream or download your Content as set forth as . Each Party is responsible for all costs associated with the performance of its obligations under this Agreement.
Registration. In order to use our Service you must register for an account and be accepted as a content provider. You agree to provide true, accurate, current and complete information about yourself, and maintain and properly update your account profile. Upon registration for the Service, you will be asked to choose a password and a user/account name.
Security of Username and Password. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify us immediately of any unauthorized use or theft of your account or any other breach of security (and to provide properly documented evidence as reasonably requested by us). We will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you will be liable for losses incurred by us or another party due to someone else using your account or password. You may not use anyone else’s account at any time.
Revenue Sharing: Content submitted by the Content Provider will be available on the applicable Channel to Users on demand for a fee. Content Provider can choose to have Content licensed to Users for personal viewing as a streaming asset that is available for daily fee, weekly fee, or monthly subscription fee, or available as a single download for purchase. Monthly subscriptions automatically renew unless a User properly cancels. Vidstore will collect 100% of the revenue generated from the Content Provider’s Channel (“Gross Revenue”) and (a) pay to Content Provider Net Revenue generated on each of their Channels as set forth on the applicable Channel Order Form and (b) retain a marketing and transaction fee as set forth on the applicable Channel Order Form.
“Net Revenue” is defined as Gross Revenue less refunds, chargebacks, discounts, and applicable sales tax (“Deductions”). For payment related inquires please email us at firstname.lastname@example.org. All payments will be made in U.S. dollars and will be payable to Content Provider within thirty days from the end of the month in which Net Revenues are received and are subject to reconciliation for Deductions by Vidstore during subsequent payment periods. Vidstore is not required to generate monthly payment reports for any period in which Net Revenues earned are less than $50. If for any reason Content cannot be viewed or downloaded, as applicable, for the full period purchased by the User, Vidstore may adjust the Net Revenue payable from such purchases based on adjustments made to the fees payable by the affected Users, as determined in Vidstore’ s sole discretion. Vidstore will be entitled to require that Content Provider provide a reasonable reserve based on the amounts of Deductions (“Reserve”). Content Provider will pay all applicable sales, use, and other such taxes related to any revenue received under this Agreement.
Term: You agree that the term of this Agreement will commence on the date you receive approval of your application for the Channel from Vidstore and will automatically continue until terminated as set forth herein (“Term”). The Term includes any Run-Off Period (defined below).
Termination: You agree that we may terminate, deactivate, modify, discontinue or abandon the Services with or without notice to you and that we will not be liable to you or any third party as a result of such actions. Vidstore will have the right to immediately terminate this Agreement for cause and without liability if you breach this Agreement or otherwise violate any applicable law, rule, or regulation. We also reserve the right to terminate your account or your use of the Service if such use places an undue burden on our networks or servers. Either party may terminate this Agreement for any reason upon no less than 60 days’ notice, subject to the Run-Off Period, if any, or immediately if either party becomes insolvent, files a voluntary petition in bankruptcy, make an assignment for the benefit of creditors, adjudicated as bankrupt, a receiver is appointed for the operation of its business, or a liquidation of substantially all of its assets.
Effect of Termination: Upon termination of this Agreement, Content Provider agrees that its Content may, at the sole discretion of Vidstore, remain accessible on the Service to Users until the end of their active subscription term (“Run-Off Period”). The right to terminate in the event of breach is without prejudice to Vidstore’ s right to exercise other remedies that may be available in equity or at law. Any decision Vidstore makes relating to termination or deactivation of any Content Provider’s, or a User’s account, will be final and binding.
3. DATA AND CONFIDENTIALITY OF INFORMATION
Ownership of Data: The rights to all data furnished to Content Provider relating to Vidstore (“Vidstore Reports”) will be provided to Content Provider periodically and such Vidstore Reports and the data contained in the Vidstore Reports will be owned by Vidstore. Vidstore grants Content Provider the right and limited license to use such Vidstore Reports for internal purposes only and Content Provider will not use the Vidstore Reports, or any information contained therein, in any manner which is (a) in violation of any applicable law or (b) in any way which directly or indirectly benefits any video on demand or similar services which are competitive to Vidstore. Neither party will transmit to the other party any personally identifiable information in connection with any individual User’s interaction with the Content in connection with the Service.
Confidentiality: During and after the Term of this Agreement, all information contained in the Vidstore Reports and information relating to its Users, Vidstore’ s business and revenue, content providers and any other material which by its nature would be reasonably considered confidential are confidential information of the Vidstore (“Confidential Information”). Except as expressly set forth in this Agreement, Content Provider will inform Vidstore of all inquiries into or requests for Confidential Information by third parties and will disclose Confidential Information to such third parties only with the prior written consent of Vidstore or when legally compelled to do and only after notice to Vidstore providing Vidstore the ability to contest such disclosure.
Our Use and Collection of Data on the Service: You agree that Vidstore can monitor, analyze and collect data from and about your Channel and Content and may use such information for any purpose in accordance with applicable law.
Tracking or Other Collection Practices of Content Provider: You agree not to collect any personal information from Users via tracking or other passive technology via the Service. Any web beacons or any other technology, device or system provided or used by Content Provider that is capable of or is intended to track or record non personally identifiable consumer information or interactions (“Tracking Devices”), including but not limited to web beacons, consumer clicks or reaction to or interaction with any Channel, Content or Users must be disclosed to and pre-approved in writing by Vidstore and will be subject to security testing and approval by Vidstore in its sole discretion.
4. PROPER USE OF THE SERVICE
Prohibited Uses: You agree that you may not access or use the Service in order to do the following prohibited actions:
- attempt to get a password, other account information, or other private information from another account holder or any User of the Service;
- disparage, defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others;
- send unsolicited mail or email, make unsolicited phone calls, send unsolicited faxes to any User of the Service, or contact any user that has specifically requested not to be contacted by you;
- use the Service in connection with surveys, contests, pyramid schemes, chain letters, junk email, or spam;
- circumvent or render ineffective any security systems or geographical restrictions, including IP address based restrictions;
- modify, replace, block or interfere with content or advertisements placed by Vidstore within the Service;
- provide any contact information which impersonates or creates a false identity or otherwise falsify any information;
- sell, buy, license or transfer access to your account;
- use any automated software or devices, such as spiders, robots or data mining techniques such as scraping, spidering, crawling or any other techniques to download, store, distribute or otherwise reproduce the Content or to manipulate the Service;
- alter or modify any part of the Service;
- create, disseminate or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret, publicity or other intellectual property or property rights of any person or entity;
- use or copy the Service, any data or other content you view on and/or obtain from the Service to provide any product or service that is competitive to the Service;
- interfere with, interrupt, destroy or limit the functionality of the Service or any computer software or hardware or telecommunications equipment;
- use the Service in any manner that could damage, disable, overburden, or impair any server, or networks connected to any server, or interfere with any other party’s use and enjoyment of the Service;
- gain unauthorized access to any Service, other accounts, computer systems or networks connected to any server or to any of the Service, through hacking, cracking, and distribution of counterfeit software, password mining or any other means;
- reverse engineer, decompile or disassemble any software accessed through the Service, including any proprietary communications protocol used by us;
- upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files or data, or any other similar software or programs that may damage the operation of any Service or any user files or data;
- use the Service for any unlawful purpose or any illegal activity; or
- use the Service or, Third Party Materials or Vidstore Marks in an unauthorized manner or in a manner which is disparaging to Vidstore or any third party.
Prohibited Content: You agree that you may not post or submit any Content whatsoever that is false, defamatory, libelous, obscene, threatening, of a menacing character, strong profanity, promotes illegal behavior, extreme violence, sexually explicit material of any kind or include any links to any such prohibited content. You may not use, upload, transmit, distribute or otherwise make available any material or information, which contain any materials that could infringe any copyright, trademark, patent, trade secret, publicity or privacy right or any other intellectual property or other proprietary right or disclose any trade secret of or violate any confidential obligation of any person or entity.
Compliance with Laws: Your use of the Service and all Content must comply with all applicable laws, rules and regulations.
Your Interactions with Users: VIDSTORE IS NOT RESPONSIBLE FOR ANY USER’S MISUSE OR MISAPPROPRIATION OF ANY OF YOUR CONTENT OR INFORMATION APPEARING ON YOUR CHANNEL OR ACCESIBLE THROUGH THE SERVICE.
Representation of Ownership: You retain copyright and other intellectual property rights with respect to any Content that you submit or distribute through the Service to the extent that you have such rights under applicable law. By providing Content on the Service you represent and warrant that (a) you own such Content or otherwise have the right to grant us the right to use and distribute the Content as set forth in this Agreement; (b) the Content is accurate and not misleading; and (c) the distribution, submission, transmission, posting and use of your Content on the Service is not in violation of any applicable laws or contractual restrictions or other third party rights (including, without limitation, confidentiality, privacy, publicity, and intellectual property rights). Vidstore has the right to request that Content Provider furnish written documentation of its ownership or valid licenses to the Content (e.g., music, images, talent, etc.) but has no obligation to do so and you are solely responsible for, and we will have no liability in connection with Content you provide through the Service.
License to Content: By submitting Content on or through Service, you automatically grant (and you represent and warrant that you have the right to grant) to Vidstore, its licensees, affiliates and their respective successors in business and assigns (“Affiliates”), and their respective employees, licensees, agents, representatives and other Users of the Service, a worldwide, sub-licenseable, assignable, irrevocable, non-exclusive, royalty-free, unlimited right and license throughout the Term (including during the Run Off Period if any) to use, reproduce, publish, distribute, publicly display and perform, reformat, adapt, modify and delete your Content in connection with the Service. This includes the right to filter, modify or adapt the Content in order to transmit, display or distribute it over computer networks and to allow Users, Third Party Providers (as defined herein) or other third parties to access Content through Service. It also includes the right for Vidstore to choose where and how Content is featured on the Service and to use Content for enhanced visibility and advertising and trade purposes at no extra cost, to link or frame your Channel and place content including ad content, on your Channel or to issue a press release describing our relationship with you, each in the sole discretion of Vidstore.
Third-Party Providers and Materials: The Service may include access to third-party materials or services provided by Vidstore’ s vendors and partners (“Third Party Providers”), including but not limited to, content hosting, cloud-based storage services, streaming technology and other third party products and services (“Third Party Materials”) which may be governed by additional terms and conditions. In some instances, Third Party Providers may require Content Provider to agree to additional terms and conditions that are not set forth in this Agreement prior to accessing or using such Third Party Materials. Content Provider will not be bound by any third party terms and conditions it has not affirmatively agreed to; provided however, the Service may not be accessible to Content Provider without agreement to such Third Party Provider terms. Notwithstanding anything to the contrary herein, Vidstore and its Affiliates are not responsible for any Third Party Materials or the acts or omissions of Third Party Providers and will have no liability or obligations with respect thereto.
5. VIDSTORE PROPRIETARY RIGHTS
Ownership of Vidstore Content and Marks: The Service, and all material published on or accessible through the Service (excluding your Content), including, but not limited to text, tests, photographs, video, graphics, music, images, animations, audio, software, plug-ins, “applets” incorporated into the software, data, sounds, messages, comments, and other materials on the Service (together “Vidstore Content”) is owned by Vidstore, it’s Third Party Providers or its other licensors, and is protected by laws governing copyrights patents, trademarks, trade secrets and/or other proprietary rights. As between Vidstore and Content Provider, Vidstore owns a copyright in the selection, coordination, arrangement and enhancement of such Vidstore Content and a copyright in the Service. All trademarks, logos, service marks, trade names, and trade dress appearing on the Service (“Marks”) (other than those provided by Content Providers) are proprietary to Vidstore or its licensors. You acknowledge that you do not acquire any ownership rights in any Vidstore Content or Marks. You may not frame or utilize framing techniques to enclose any Mark or Vidstore Content (including images, text, page layout, or form) nor use any metatags or any other “hidden text” utilizing the Marks without our prior express written consent. You agree not to copy, reproduce, publish, transmit, distribute, perform, sell, create derivative works of, or in any way exploit, the Service or any of the Marks or Vidstore Content, in whole or in part, without our prior written consent. We reserve all rights not expressly granted in and to the Marks, Vidstore Content and Service.
No Other License Granted: Except for allowing you to use the Service as set forth in this Agreement, when you use the Service you are not receiving a license or any other rights from us, including intellectual property or other proprietary rights of Vidstore. You understand that Vidstore reserves all rights not expressly granted herein and you have no rights to the Vidstore Content, Marks or Service except as indicated.
Vidstore Content License: Vidstore grants to Content Provider the revocable, non-exclusive, royalty-free, limited right and license throughout the Term to use, reproduce, publish, distribute, and publicly display the Vidstore Marks in accordance with the Vidstore Brand Guidelines, attached hereto as Exhibit A, solely in connection with marketing materials produced by Content Provider in connection with its Channel. Vidstore may terminate your license to the Vidstore Marks at any time for any or no reason. Goodwill in the Vidstore Marks inures only to the benefit of Vidstore or its licensors as applicable. You will not challenge or assist others to challenge the Vidstore Marks or their registration or attempt to register any trademarks, marks or tradenames confusingly similar to Vidstore Marks.
Monitoring of Provider Content: Vidstore has no obligation to monitor Content but reserves the right to review and remove any Content that is in violation of this Agreement at any time, without notice, or for any reason in its sole discretion.
Disclosure of Information and Investigations: You agree that Vidstore may maintain, access and disclose your account information and Content if required to do so by law or believes in good faith that such disclosure is necessary to protect the property or personal rights of Vidstore or any other person, or to respond to claims of any nature, comply with law or governmental regulatory authority or otherwise enforce this Agreement. Vidstore has no obligation, but reserves the right to investigate suspected violations of this Agreement, including without limitation any violation arising from any Content you provide to the Service. Vidstore may suspend any Content Provider whose conduct or postings are under investigation and may remove such material from its servers as it deems appropriate and without notice. If Vidstore believes, in its sole discretion, that a violation of this Agreement has occurred, it may cancel postings, warn Users, suspend users and passwords, terminate accounts or take other corrective action it deems appropriate. BY ACCEPTING THIS AGREEMENT YOU WAIVE AND HOLD HARMLESS VIDSTORE FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY VIDSTORE AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY ANOTHER USER OR LAW ENFORCEMENT AUTHORITIES.
6. DIGITAL MILLENNIUM COPYRIGHT ACT
Filing a Complaint: Vidstore has registered an agent with the United States Copyright Office in accordance with the terms of the Digital Millennium Copyright Act (the “DMCA”) and avails itself of the protections under the DMCA. We reserve the right to remove any Content on the Service which allegedly infringe another person’s copyright and/or terminate, discontinue, suspend and/or restrict the account or ability to visit and/or use the Service or remove, edit, or disable any Content on our Service which allegedly infringes another person’s copyright. It is our policy to terminate the access of repeat infringers. We are under no obligation to, and do not, scan content posted for any violations of third party rights. However, we respect the copyright interests of others and it is our policy not to permit materials known by us to infringe another party’s copyright to remain on Service. If you believe any materials on the Service infringes a copyright, you should provide us with a written request to takedown the allegedly infringing material in the form of a written letter, sent by fax or regular mail only, which includes:
- 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 name, address, telephone number and email address (if available);
- A statement that the complaining party has 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;
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
- The signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notwithstanding the foregoing, we reserve the right to ignore a DMCA Takedown Notice that is not in compliance with the DMCA.
Filing a Counter-Notice: If your material has been removed or blocked by us as a result of our receipt of a DMCA Takedown Notice, you may send us a request asking for the allegedly infringing material to be restored in the form of a written letter, sent by fax or regular mail only, (“DMCA Counter-Notice”) that at a minimum includes:
- Identification of the copyrighted work (or works) that was removed by Vidstore and the location at which the works appeared before they were removed. The information must be reasonably sufficient to permit us to identify the copyrighted work;
- Your name, address, telephone number and email address (if available);
- A statement that you consent to the jurisdiction of the U.S. Federal District Court for the judicial district in which your address is located;
- A statement that you will accept service of process from the person (or an agent of such person) that provided the DMCA Takedown Notice to us;
- A statement that you have a good faith belief that the allegedly infringing material identified above as the copyrighted work was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- A signature of a person authorized to act on behalf of the owner of the copyrighted work that was taken down.
When we receive the DMCA Counter-Notice, we will send a copy of the DMCA Counter-Notice to the party who originally sent us the DMCA Takedown Notice requested the removal of the allegedly infringing material and we will reinstate the allegedly infringing material, unless that party obtains a court order supporting removal of the allegedly infringing material. Notwithstanding the foregoing, we reserve the right to ignore a DMCA Counter-Notice that is not in compliance with the DMCA.
Both the DMCA Takedown Notice and the DMCA Counter-Notice must be sent to our designated DMCA designated agent addressed as follows:
TN Marketing, LLC
1903 Wayzata Blvd E.
Wayzata, MN 55391
Attention: Neil Rice
7. GENERAL PROVISIONS
Survival: If this Agreement expires or is terminated for any reason, the provisions which by their nature should continue after termination such as Section 3 Data and Confidentiality, Section 5 Vidstore Proprietary Rights, Section 7 General Provisions, Section 8 Legal Notices, Section 9 Resolution Of Disputes For U.S Residents, Section 10 Resolution Of Disputes For Non-U.S. Residents And Section 11 Miscellaneous.
No Third Party Beneficiaries: You agree that, except as otherwise expressly provided in this Agreement, there aren’t any third party beneficiaries to this Agreement.
U.S. Export Controls: Software from our Service will be not be exported or re-exported (a) into (or to a national or resident of Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
Communications from Us: When you provide us with contact information such as an email address or telephone number in connection with our Service or login to the Service, you agree that this action establishes a business relationship giving us permission to communicate with you using your contact information. You agree to give us only contact information that you have the legal authority over such as your mobile or other telephone number, and can provide us and/or third parties with the authorization to contact you. This means you may be contacted in person or by recorded message, by e-mail, telephone and/or mobile telephone number (including use of automated dialing equipment), text (SMS) message, IM messaging, or any other means of communication that your wireless or other telecommunications device may be capable of receiving, in accordance with applicable law. Please be sure to give us updated contact information; you are solely responsible for the accuracy of for any the contact information you provide to us.
No liability for Accumulated Content: When using the Service, you may accumulate content that resides as data on our servers. This data, and any other data residing on our servers, may be deleted (such as Content), in whole or in part, altered, moved or transferred at any time for any reason in our sole discretion with or without notice and with no liability of any kind. You acknowledge that, notwithstanding any rights you may have with respect to Content, you have no ownership rights in your account and if your account is terminated or deactivated all your account information including Content may be deleted. Vidstore AND ITS AFFILIATES DO NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIM ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY CONTENT OR ACCOUNT INFORMATION RESIDING ON VIDSTORE’S OR ITS THIRD PARTY PROVIDERS SERVERS AND HAS THE RIGHT TO DELETE SUCH CONTENT OR ACCOUNT INFORMATION AT ANY TIME FOR ANY REASON.
8. LEGAL NOTICES
Waiver and Release of Liability: EXCEPT FOR CLAIMS OR CAUSES OF ACTION BASED ON FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR IF OTHERWISE PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL THE INDEMNITEES (AS DEFINED BELOW) BE LIABLE FOR ANY LOSSES OR DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO ANY CLAIMS OR CAUSES OF ACTION INCLUDING BUT NOT LIMITED TO LOSS OF USE, PROFITS, DATA, OR OTHER INTANGIBLES, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE, CLAIMS BASED ON UNAUTHORIZED ACCESS TO CONTENT OR COLLECTION OF PERSONAL INFORMATION OR TRANSMISSIONS, CLAIMS OF DEFAMATION, FALSE LIGHT, SLANDER OR LIBEL AND/OR SIMILAR CLAIMS, CLAIMS ARISING OUT OF OR RELATED TO THE USE, OR INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE, OR NON-PERFORMANCE OF THE SERVICE, CLAIMS BASED ON DEATH, BODILY INJURY, AND/OR SIMILAR CLAIMS, INTELLECTUAL PROPERTY INFRINGEMENT OR ANY OTHER DAMAGES RESULTING FROM THE USE OF THE SERVICE OR ANY SUCH MATERIALS APPEARING ON OR IN CONNECTION WITH THE SERVICE, EVEN IF Vidstore HAS BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE. YOU UNDERSTAND THAT YOUR USE OF THE SERVICE (INCLUDING ANY LOSS OF DATA OR CONTENT), OR DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE YOU EXPERIENCE FROM USING THE SERVICE IS AT YOUR SOLE RISK.
Disclaimer of Warranties: YOU UNDERSTAND THAT THE SERVICE AND ALL VIDSTORE CONTENT, INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING BUT NOT LIMITED TO THIRD PARTY INFORMATION, PRODUCTS AND CONTENT INCLUDED IN OR ACCESSIBLE FROM THE SERVICE) ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS. Vidstore, ITS THIRD PARTY PROVIDERS AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES AND CONDITIONS OF ANY KIND (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE), INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FIVidstoreESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AS TO THE SERVICE AND ALL INFORMATION, PRODUCTS, AND OTHER CONTENT (INCLUDING THIRD PARTY INFORMATION, PRODUCTS, AND CONTENT) INCLUDED IN OR ACCESSIBLE FROM THE SERVICE TO THE FULLEST EXTENT PERMITTED BY LAW. YOU ACKNOWLEDGE THAT Vidstore, ITS THIRD PARTY PROVIDERS, LICENSORS AND THEIR RESPECTIVE AFFILIATES MAKES NO WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. YOU UNDERSTAND THAT Vidstore, ITS THIRD PARTY PROVIDERS, LICENSORS AND THEIR RESPECTIVE AFFILIATES DO NOT WARRANT THAT THE RESULTS OBTAINED FROM YOUR USE OF THE SERVICE WILL MEET YOUR EXPECTATIONS. Vidstore MAKES NO GUARANTEES, EITHER EXPRESS OR IMPLIED, REGARDING THE AMOUNT OF NET REVENUE IF ANY, YOU MAY EARN FROM THE SERVICE. NO WARRANTY OF ANY KIND, WHETHER ORAL OR WRITTEN, CAN MODIFY THIS AGREEMENT OR THE DISCLAIMERS SET FORTH IN THIS DOCUMENT. YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. IF YOU ARE DISSATISFIED WITH ANY ASPECT OF THE SERVICE, OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE THIS AGREEMENT AND STOP USING THE SERVICE PURSUANT TO THE TERMS HEREOF.
Liability Limitation: THE FOREGOING DISCLAIMERS, WAIVERS, RELEASES AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. Vidstore’S THIRD PARTY PROVIDERS, LICENSORS AND CONTRACTORS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS. IF ANY PART OF THESE WARRANTY DISCLAIMERS OR LIMITATIONS OF LIABILITY ARE FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE INDEMNITEES AGGREGATE LIABILITY FOR ALL CLAIMS OR CAUSES OF ACTION UNDER SUCH CIRCUMSTANCES FOR LIABILITIES SHALL NOT EXCEED $100.00.
Indemnity/Release: You agree to indemnify and hold Vidstore, and its Affiliates, Third Party Providers, business affiliates, licensors, partners, and their respective officers, directors, employees, and agents, successors and assigns (collectively, “Indemnitees”) from and against claims of any kind that Indemnitees may incur arising out of or related to your use of the Service or in connection with a third party claim or otherwise, in relation to your use of the Service or your violation of this Agreement, applicable law or the rights of any third party. To the extent permitted under applicable laws, you hereby release Indemnitees from any and all claims or liability related to your use of the Service. Moreover, if you have a dispute with one or more Users, you release Indemnitees Vidstore for any and all damage, liabilities, causes of action, judgments, and claims arising out of or in any way connected with such disputes.
California Rights: If you are a California resident and in connection with the foregoing releases, you hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the site, please send an e-mail to email@example.com. You may also contact us by writing to TN Marketing, LLC, 1903 Wayzata Blvd E, Wayzata, MN 55391, or by calling us at 877-329-9375. California residents may reach the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
9. RESOLUTION OF DISPUTES FOR U.S. RESIDENTS
Governing Law: These Terms will be governed by and construed in accordance with the laws of the Massachusetts without application of conflict of laws rules, except that the Arbitration provisions will be governed by the Federal Arbitration Act.
Resolution of Any Dispute: In the event a dispute arises between you and Vidstore, we want to provide you with an efficient, neutral and cost-effective means of resolving the dispute. Most customer concerns can be resolved quickly and to the customer’s satisfaction by contacting our customer care department or calling 877-329-9375 or writing us at TN Marketing, LLC, 1903 Wayzata Boulevard East, Wayzata, MN 55391. If, however, there is an issue that needs to be resolved, the following provisions of this Section 9 describe how both of us will proceed:
Limitation of Legal Remedies: If there is a dispute that remains unresolved, INSTEAD OF SUING IN COURT, YOU AND Vidstore EACH AGREE TO THE FULLEST EXTENT PERMITTED BY LAW TO ARBITRATE DISPUTES THROUGH BINDING ARBITRATION PURSUANT TO THE JAMS ARBITRATION RULES AND PROCEDURES, ON AN INDIVIDUAL BASIS, WITHOUT CLASS RELIEF, EXCEPT FOR DISPUTES PERTAINING TO VIDSTORE’S INTELLECTUAL PROPERTY RIGHTS; STATUTORY CLAIMS THAT PURSUANT TO LAW ARE NOT ARBITRABLE; INDEMNIFICATION; CONTRIBUTION; INTERPLEADER; OR INJUNCTIVE RELIEF ARISING OUT OF A CLAIM. This agreement to arbitrate is intended to be broadly interpreted. It includes claims based in contract, tort, statute, fraud, misrepresentation or any other legal theory (“Claim(s)”). The arbitrator’s decision and award is final and binding, with some exceptions under the Federal Arbitration Act, 9 U.S.C. 1, et seq., and judgment on the award may be entered in any court with jurisdiction.
Jury Trial Waiver: YOU AND Vidstore EACH VOLUNTARILY WAIVE THE RIGHT TO TRIAL BY JURY IN RESOLVING ANY DISPUTE BETWEEN US ARISING OUT OF THESE TERMS OR THE SERVICES.
Class Action Waiver: YOU AND Vidstore EACH AGREE THAT CLAIMS AGAINST THE OTHER MAY ONLY BE BROUGHT IN AN INDIVIDUAL CAPACITY AND NOT IN A CLASS ACTION OR REPRESENTATIVE PROCEEDING. All arbitrations under these Terms must be conducted on an individual (and not a class-wide) basis and an arbitrator will have no authority to award class-wide relief. You acknowledge and agree that these Terms specifically prohibit you from commencing any legal proceedings as a representative of others, participating in a class, representative, or collective action as a class representative, class member or an opt-in party, acting as a private attorney general, or joining or consolidating Claims with claims or proceedings brought by any other person (“Class Action Waiver”).
Arbitration Procedures: A party who intends to seek arbitration must first send to the other a written Notice of Dispute describing the nature and basis of the Claim and setting forth the specific relief sought (a “Notice”). All Notices to Vidstore must be sent to the following address: 1903 Wayzata Boulevard East, Wayzata, MN 55391. All notices to you will be sent to the email or street address provided in your account, if available. Upon receipt of such Notice, the receiving party will have a 60 day period in which it may satisfy the Claim against it by fully curing the Claim, providing all the relief requested in the Notice, or entering into a settlement to resolve the Claim to the mutual satisfaction of the parties. After the expiration of such sixty-day cure period, you or Vidstore may commence an arbitration proceeding. Unless otherwise agreed to by you and Vidstore in writing, the arbitration will be governed and conducted by JAMS before a single arbitrator with substantial experience in the internet industry and will follow substantive law in adjudicating the dispute, except that this section will be construed as a written agreement to arbitrate pursuant to the Federal Arbitration Act (“FAA”). You and Vidstore agree that this section satisfies the writing requirement of the FAA. The arbitration of any claim will be conducted in the State of Massachusetts, and for any non-frivolous claim that does not exceed $10,000.00, you will have the choice as to whether the hearing is conducted in person or by telephone. For those claims that the arbitrator decides are not frivolous, Vidstore will: (1) pay all costs of the arbitration; (2) if you prefer, will conduct the arbitration by telephone, and (3) will not seek attorneys’ fees in the event Vidstore prevails. Each party will pay the fees and costs of its own counsel, experts and witnesses. The JAMS rules are available on its website at www.jamsadr.com. To the extent that this dispute resolution section conflicts with JAMS minimum standards for procedural fairness, the JAMS rules and/or minimum standards for arbitration procedures in that regard will control. Neither party will sue the other party other than as provided herein or for enforcement of this clause or for the arbitrator’s award; and any such suit may be brought only in Federal District Court or, if any such court lacks jurisdiction, in any state court that has jurisdiction. The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, or enforceability of these Terms including any claim that all or any part of these Terms are void or voidable. However, the preceding sentence will not apply to the clause entitled “Class Action Waiver”.
Exception: All parties, including related third parties, will retain the right to seek adjudication in a small claims tribunal for disputes within the scope of such tribunal’s jurisdiction. Any dispute, which cannot be adjudicated within the jurisdiction of a small claims tribunal, will be resolved by binding arbitration, with the exception of any Claim or action for indemnification, contribution, interpleader, or injunctive relief arising out of a Claim, which Claims or actions will not be subject to arbitration. Any appeal of a judgment from a small claims tribunal will be resolved by binding arbitration.
Survival: This arbitration provision will survive termination of these Terms.
Severability: If any provision of this Section 9 is declared or found by a court of competent jurisdiction or arbitrator to be unlawful, unenforceable or void, such provision will be ineffective only to the extent that it is found unlawful, unenforceable or void, and the remainder of the provision and all other provisions will remain fully enforceable, except that if the Class Action Waiver for any Claim cannot be enforced, then the provision to arbitrate will not apply.
10. RESOLUTION OF DISPUTES FOR NON-US RESIDENTS
If any controversy, allegation, or claim (including any non-contractual claim) arises out of or relates to the Services or Terms and you are a non-U.S. resident, then you and we agree to send a written notice to the other providing a reasonable description of the dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us but if no such information exists or if such information is not current, then we have no obligation under this section. Your notice to us must be sent to us at firstname.lastname@example.org or to TN Marketing, LLC, 1903 Wayzata Boulevard East, Wayzata, MN 55391, United States. For a period of 60 days from the date of receipt of notice from the other party, Vidstore and you will engage in a dialogue in order to attempt to resolve the dispute, though nothing will require either you or Vidstore to resolve the dispute on terms either you or Vidstore, in each of our sole discretion, are unsatisfactory. Nothing in this section will prevent a party from pursuing their claims in court or another complaint process.
This Agreement, and any Channel Order Form or other policies that incorporate by reference this Agreement are the entire agreement between you and Vidstore. They supersede any and all prior or contemporaneous agreements between you and Vidstore relating to your use of the Service. Vidstore may assign this Agreement, in whole or in part, at any time. If any part of this Agreement is determined to be invalid or unenforceable, it will not impact any other provision of this Agreement, all of which will remain in full force and effect. Vidstore and Content Provider expressly acknowledge and agree that it is acting as independent contractor and not an employee or agent of the other, and that nothing herein will constitute a partnership or joint venture between the Parties. Headings in the Agreement are for convenience of reference only and will not affect the interpretation or construction of this Agreement. The failure of Vidstore to partially or fully exercise any rights or the waiver of Vidstore of any breach of this Agreement by you will not prevent a subsequent exercise of such right by Vidstore or be deemed a waiver by Vidstore of any subsequent breach by you of the same or any other term of this Agreement. The rights and remedies of Vidstore under this Agreement and any other applicable agreement between you and Vidstore will be cumulative. If any provision of this Agreement is declared or found to be unlawful, unenforceable or void, such provision will be ineffective only to the extent that it is found unlawful, unenforceable or void and the remainder of the provision and all other provisions will remain fully enforceable.
12. CONTACTING US
If you have any questions about the Agreement, you may write to us at TN Marketing, LLC, 1903 Wayzata Blvd E, Wayzata, MN 55391.