Term Of Use
FOCUS MEDIA, INC. TERMS OF SERVICE
1. ACCEPTANCE OF TERMS. Thank you for using our innovative platform for capturing and sharing video tributes to people, pets, places, and things you love. Focus Media, Inc. ("we," "us" and "our") provides solutions and services to you subject to the following Terms of Service ("Terms"), which may be updated by us from time to time upon notice to you. BY ACCESSING THE SERVICE YOU ARE CONSENTING TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, YOU MUST NOT ACCESS THE SERVICE, AND YOU SHOULD NOT CLICK ON THE BUTTON THAT SAYS "I ACCEPT," INSTEAD YOU SHOULD CLICK "CANCEL" AND REFRAIN FROM USING THE SERVICE. You can review the most current version of the Terms at any time at: http://www.thetributenetwork.com/terms.php.
If at any time you find these Terms of Service unacceptable, you must immediately cease all use of the Service. YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD AND THAT YOU ARE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT. If you are registering on behalf of individual age 13 through 17 you represent that you are the parent or legal guardian of such an individual and agree to be legally responsible for such individual's use of the Service in accordance with this Agreement. It is your responsibility to determine whether any aspect of the Service is appropriate for your child. Users must be at least 13 years of age to use the Service.
2. THE SERVICE. We provide users with a platform on which they can upload and share video tributes to people, pets, places and things (the "Service"). Unless explicitly stated otherwise, any new features that enhance the current Service shall be subject to these Terms. In order to use the Service, you must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device.
3. REGISTRATION OBLIGATIONS. In consideration of use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). You will also be asked to provide a user name and password. You are entirely responsible for maintaining the confidentiality of your password. You may not use the account, username, or password of someone else at any time. You agree to notify Company immediately on any unauthorized use of your account, user name, or password. You also understand and agree that the service may include certain communications from us, such as service announcements and administrative messages, and that these communications are considered part of your membership and you may not be able to opt out from receiving them.
5. MEMBER CONDUCT. You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. You, and not us, are entirely responsible for all Content that you upload, post or otherwise transmit via the Service. We do not control the Content posted via the Service and, as such, we do not guarantee the accuracy, integrity or quality of such Content, including but not limited to any commentary posted on the Service. You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable.
You agree to not use the Service to: (a) upload, post or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (b) harm minors in any way; (c) impersonate any person or entity, including, but not limited to, any official or agent representing the Service, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity; (d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service or develop, other than as facilitated by the Service, restricted or password-only access pages, or hidden pages or images (those not linked to another accessible page); (e) upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (f) upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; (g) upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment including, without limitation, by means of submitting a virus to the Service, overloading, "flooding," "spamming," "mail bombing," or "crashing;" (h) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; (i) advocate or encourage conduct that could constitute a criminal offense, give rise to civil liability, or intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, any regulations having the force of law in any jurisdiction around the world; (j) "stalk" or otherwise harass another individual or group; (k) collect or store personal data about users other than those who willingly provide such information in order to use the Service; (l) advertise or otherwise solicit funds or post Content that is a solicitation for goods or services; (m) access content or data not intended for you, or log onto a server or account that you are not authorized to access; (n) probe, scan, or test the vulnerability of the Service or any associated system or network, or breach security or authentication measures without proper authorization or make any attempt to do so; (o) use the Service to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services.
To ensure that we provide a high quality experience for you and for other users of the Service, you agree that we or our representatives may access your account and records on a case-by-case basis to investigate complaints or allegations of abuse, infringement of third party rights, or other unauthorized uses of the Service. We reserve the right to terminate your account or your access to the Service immediately, with or without notice to you, and without liability to you, if we believe that you have violated any of the Terms of Service, furnished us with false or misleading information, or interfered with use of the Service by others.
6. CONTENT SUBMITTED TO US. By posting Content on the Service, you warrant and represent that you own the rights to the Content or are otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute the Content. The burden of proving that any Content does not violate any laws or third party rights rests solely with you. You will not be compensated for any Content. You acknowledge that we do not pre-screen Content, but that we and our designees shall have the right (but not the obligation) in our sole discretion to remove or block access to any Content that violates the Terms or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
7. INDEMNITY. You agree to indemnify and hold us, and our subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your Content, your use of the Service, your connection to the Service, your violation of the Terms, or your violation of any rights of another. We will notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost.
8. NO RESALE OF SERVICE. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service.
9. MODIFICATIONS TO SERVICE. We reserve the right at any time and from time to time to perform maintenance, upgrades, updates, suspend, and to modify the Service (or any part thereof, such as certain features or functions) with or without notice. You agree that we shall not be liable to you or to any third party for any modification or suspension of the Service.
10. TERMINATION. If we believe that you have violated or acted inconsistently with the letter or spirit of the Terms, we may suspend or terminate your use of the Service, with or without notice.
11. ADVERTISEMENTS. We may run advertisements and promotions on the Service. By using the Service and agreeing to these Terms, you agree that we have the right to run such advertisements and promotions. The manner, mode and extent of advertising by us on the Service is subject to change in our sole discretion.
12. CORRESPONDENCE WITH THIRD PARTIES. Your correspondence with third parties on or through the Service are solely between you and such third party. You agree that we shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such correspondence.
13. LINKS. The Service may provide, or third parties may provide, links from the Service to other World Wide Web sites or resources. Because we have no control over such sites and resources, you acknowledge and agree that we are not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
14. PROPRIETARY RIGHTS. You acknowledge and agree that the Service and any necessary software used in connection with the Service, including all files and images contained in or generated by the software, and accompanying data ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in merchant sites, sponsor advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. You agree not to access the Service by any means other than through the interface that is provided by us for use in accessing the Service. Except as expressly authorized by us or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part. We grant you a personal, non-transferable and non-exclusive right and license to use the Software object code on a for non-commercial, personal use only; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. We do not transfer either the title or the intellectual property rights to the Software, and we or our licensors retain full and complete title to the Software as well as all intellectual property rights therein. All trademarks and logos are owned by us or our licensors and you may not copy or use them in any manner. All of our works of authorship reflected in the Service are: Copyright 2006, Focus Media, Inc. All rights reserved.
15. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. (b) WE MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, OR (ii) THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE. (c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. (d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
16. LIMITATION OF LIABILITY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iii) OR STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE LIABILITY ARISES OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION.
17. EXCLUSIONS AND LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 15 AND 16 MAY NOT APPLY TO YOU. The Service is controlled and operated by us from our offices in the State of California. We make no representation that any of the materials or the services to which you have been given access are available or appropriate for use in other locations. Your use of or access to the Service should not be construed as the Company purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than California.
18. NOTICE. Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to the Terms or other matters by displaying notices or links to notices to you generally on the Service. We will post any revision to these Terms of Service to the Service, and the revision shall be effective immediately on such posting. You agree that, by continuing to use or access the Service following notice of any revision, you shall abide by any such revision. BY USING THE SERVICE OR ACCESSING THE SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF SERVICE AND AGREE TO BE BOUND BY THEM.
19. COPYRIGHTS. We respect the intellectual property rights of others and we ask our users to do the same. Our policy is to investigate any allegations of copyright infringement brought to our attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want us to delete, edit, or disable the material in question, you must provide us with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed 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 Company to locate the material; (d) information reasonably sufficient to permit Company to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement 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 (f) 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 owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to our designated agent:
Insert your name and address here:
and you must cc: email@example.com
20. GENERAL INFORMATION. The Terms constitute the entire agreement between you and us and govern your use of the Service, superseding any prior agreements between you and us (including, but not limited to, any prior versions of the Terms). You also may be subject to additional terms and conditions that may apply when you use third-party content or third-party software. The Terms and the relationship between you and us shall be governed by the laws of the State of California without regard to its conflict of law provisions. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this agreement. You agree to submit to the personal and exclusive jurisdiction of the courts located within Los Angeles County, California. Our failure to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by you, and any such attempted assignment or transfer shall be void and without effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Terms are for convenience only and have no legal or contractual effect.
21. VIOLATIONS. Please report any violations of the Terms to us at firstname.lastname@example.org