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VideosZ - Download Agreement

IMPORTANT!

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING, OR OTHERWISE USING ANY CONTENT (AS DEFINED BELOW) FROM THIS WEB SITE. BY CLICKING ON THE “YES” OR “ACCEPT” BUTTON, OR OTHERWISE DOWNLOADING OR ACCESSING THE CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN. YOU SHOULD PRINT-OUT A COPY OF THIS AGREEMENT FOR FUTURE REFERENCE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD CLICK THE “DO NOT ACCEPT” OR “REJECT” BUTTON TO TERMINATE THE DOWNLOAD PROCESS. CONTENT PROVIDER (AS DEFINED BELOW) AGREES TO LICENSE THE CONTENT TO YOU ONLY IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN.

I. Definitions

The following terms used in this Agreement have the meanings set forth below:

a. Content

Means all materials downloadable from this web site, including, but not limited to all literary works, text, pictorial and graphical works, photographs, video and audio clips, motion pictures and other audio visual works, video games, music, soundtracks, button icons, streaming data, animation, images, compilations, .RAM files, .AVI files, or any other software files (in object code or source code format).

b. Content Provider

Means VideosZ.com (VideosZ).

II. License Grants and Proprietary Rights

a. License Grant

Subject to the terms and conditions of this Agreement, provided that you are a member in good-standing to this web site or are otherwise permitted by Content Provider to download the Content, Content Provider hereby grants you a limited, non-transferable, non-assignable, worldwide, non�-exclusive right to use the Content solely for your own internal non-commercial personal use. You may cache the Content onto the hard drive of a single computer for your personal, non-commercial internal use. The rights granted hereunder constitute a license, not a sale, of the applicable Content.

b. Restrictions on Use of Content

You agree that you will not, nor will you authorize or permit others to: (1) reverse engineer, decompile or disassemble the software elements of the Content or otherwise attempt to discover the source code of the software elements of the Content; (2) sell, rent, lease, license, sublicense, transfer, distribute, re-transmit, time-share, use or make available on a service bureau, or otherwise assign to any third party the Content or any of your rights to license the Content, (3) modify the Content or create any derivative works based on the Content; or (4) circumvent any encryption or other security tools used anywhere in the Content, or the web site.

c. Ownership

As between the parties, the Content and all patents, copyrights, trade secrets, trademarks, service marks, know-how and any other proprietary rights therein or thereto, is the sole and exclusive property of Content Provider (or Content Provider’s licensors), and you gain no right, title or interest in and to the Content by virtue of this Agreement other than the limited licenses granted herein expressly in Section II(a) above.

d. Notices

You shall include such proprietary rights and other notices on each copy of the Content as may be provided by Content Provider to you from time to time, or as may be generated automatically by the Content. You shall not remove or obscure any such notices.

e. Remedy for Breach of License

In addition to all other rights and remedies available to Content Provider at law or in equity, any violation of the licensing provisions of this Section II by you (or any third party to whom you have provided access to the Content) shall constitute a material breach of this Agreement and Content Provider shall have the immediate right to terminate this Agreement and all licenses granted hereunder, and Content Provider may seek any and all appropriate remedies, including but not limited to injunctive relief for patent, copyright, or trademark infringement, misappropriation of trade secrets, breach of confidence, or any other theory, as applicable.

III. Fees

a. Fees

You agree to pay Content Provider all fees required for you to download the Content, as provided as part of the download/installation process, or otherwise as part of your membership to the web site (as applicable). All payments shall be in United States Dollars. You agree to pay all fees when due. Any unpaid fees shall accrue interest at an annual rate of 1.5%, or the highest legal rate, whichever is lower, of the unpaid balance until paid. Fees may be increased by Content Provider from time to time based on Content Provider’s then-standard fees for the Content.

b. Taxes

All fees and other charges set forth in the download/installation process do not include any federal, state, or local sales, use, value-added, property, excise, withholding or other taxes, customs or duties now or hereafter levied which shall be for your account. Any taxes or amounts in lieu thereof paid or payable by Content Provider in respect of any such taxes on such fees or charges (excepting only taxes on net income) shall be added to your obligations as an additional charge which shall be due within thirty (30) days after invoice therefor.

IV. No Warranties

YOU EXPRESSLY AGREE THAT YOUR USE OF THE CONTENT IS AT YOUR DISCRETION AND AT YOUR OWN AND SOLE RISK. THE CONTENT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. CONTENT PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES CONTENT PROVIDER MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE CONTENT. YOU ALSO UNDERSTAND AND AGREE THAT YOU ARE AND WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF THE CONTENT. CONTENT PROVIDER MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE CONTENT OR ANY TRANSACTION ENTERED INTO THROUGH THE CONTENT AND IS NOT RESPONSIBLE FOR ANY USE OF CONFIDENTIAL OR PRIVATE INFORMATION BY THIRD PARTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

V. Indemnity

You agree to indemnify Content Provider against any and all claims, liabilities, and costs, including reasonable attorneys’ fees, reasonably incurred in the defense of any claim or suit arising out of or otherwise related to this Agreement, including without limitation, any breach or threatened breach by you of this Agreement. Content Provider shall promptly notify you in writing of any such claim or suit, and cooperate fully (at your expense) in the defense of such claim or suit. Content Provider may participate in the defense of such claim or defense at its own expense.

VI. Limitation of Liability

IN NO EVENT SHALL CONTENT PROVIDER (OR ITS LICENSORS) BE LIABLE TO YOU, OR ANY OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF CONTENT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CONTENT PROVIDER’S TOTAL AGGREGATE LIABILITY HEREUNDER FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID BY YOU FOR USE AND ACCESS TO THE CONTENT.

VII. Term and Termination

a. Term

The term of this Agreement shall begin on the date that you first download/install the Content and shall continue in effect until such time as either party terminates the Agreement, with or without cause.

b. Effect of Termination

Upon termination of this Agreement for any reason, (1) all licenses granted hereunder shall terminate immediately, (2) you shall erase and destroy all copies of the Content (including, without limitation deleting the Content from any cached files on the hard drive of your computer); and (3) Content Provider shall immediately cease providing access to the Content to you.

c. Survival

The parties’ rights and obligations under Sections II(b), II(c), II(e), III, IV, V, VI, VII(b), and VIII shall survive any expiration or earlier termination of this Agreement.

VIII. General Terms

a. Governing Law

This Agreement and all matters arising out of or otherwise relating to this Agreement, shall be governed by the laws of the State of Florida, excluding its conflict of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The parties hereby submit to the personal jurisdiction of the state and federal courts of the State of Florida. Exclusive venue for any litigation permitted under this Agreement shall be with the state and federal courts located in Seminole County, Florida.

b. Rights to Injunctive Relief

Both parties acknowledge that remedies at law may be inadequate to provide an aggrieved party with full compensation in the event of the other party’s breach of Section 2, and that an aggrieved party shall therefore be entitled to seek injunctive relief in the event of any such breach, in addition to seeking all other remedies available at law or in equity.

c. Arbitration

If there is a dispute between the parties arising out of or relating to this Agreement, the parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either party may submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted in Seminole County Florida, and conducted by a single arbitrator, knowledgeable in software, the Internet and e-Commerce. The party bringing the action shall be responsible for paying all costs for arbitration, including the arbitrator’s fees, unless attorneys fees may be awarded to the prevailing party as a matter of substantive law. The arbitrator shall have no authority to award any punitive or exemplary damages, certify a class action, add any parties, or to vary or ignore the terms of this Agreement and shall be bound by governing and applicable law. This Section shall not apply to any breach (or any allegation which if true would constitute a breach) of Section 2.

d. Assignment

The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by you.

e. Severability

If for any reason a court of competent jurisdiction or arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.

f. No Waiver

Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision, and no waiver of one breach will constitute a waiver of subsequent breaches of the same or of a different nature.

g. Complete Agreement

This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both parties.

h. Relationship Between the Parties

Content Provider is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.

i. Headings

Section and subsection headings of this Agreement are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.

j. Force Majeure

Content Provider shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond its reasonable control, including but not limited to: acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software, including Y2K errors or omissions, for so long as such event continues to delay Content Provider’s performance.

k. Export

You understand and acknowledge that the software elements of the Content may be subject to regulation by agencies of the U.S. Government, including the U.S. Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. You will not assist or participate in any such diversion or other violation of applicable U.S. laws and regulations. You warrant that you will not license or otherwise permit anyone not approved to receive controlled commodities under applicable U.S. laws and regulations and that you will abide by such laws and regulations. You shall hold Content Provider harmless and indemnify Content Provider from any breach or threatened breach of this Section VIII(k).

l. Government Rights

The software elements of the Content have been developed at private expense and is “commercial computer software” or “restricted computer software” within the meaning of the FARs, the DFARs, and any other similar regulations relating to government acquisition of computer software. Nothing contained herein will be deemed to: (1) grant any government agency any license or other rights greater than are mandated by statute or regulation for commercial computer software developed entirely at private expense, or (2) restrict any government rights in any extensions or custom solutions provided hereunder and developed at government expense.

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