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Terms

TERMS AND CONDITIONS OF USE

Effective date: March 17, 2009

Thank you for visiting the Vusion, Inc. (“Vusion”) website www.vusion.com (“Site”), owned and operated by Vusion. You should not access or use this Site until you have carefully read and agreed to these terms and conditions of use (the “Terms”). By using this Site, you and other users of the Site agree to these Terms. If you do not agree to these Terms, you may not access or use the Site. You should check these Terms periodically for modifications. Vusion may modify the Terms from time to time without notice to you. If Vusion makes material changes to the Terms we will post the revised Terms and the revised effective date on this Site. Vusion include the effective date of our Terms at the top of the statement. By using the Site following any modifications to the Terms, you agree to be bound by such modifications.

The provisions contained in these Terms supersede all previous notices or statements regarding our terms and conditions of use with respect to this Site.

1. Use of this Site. Vusion provides you with access to and use of the Site subject to your compliance with the Terms. By using this Site, or submitting information through this Site, you represent that you are a United States of America resident and at least 18 years of age. If you are not at least 18 years of age, you may not use this Site without the express consent of an adult. No material from the Site may be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way, except for as specifically allowed in the Site. The Site, including all of its contents, such as text, images, audio, and the HTML used to generate the pages, (“Content”), are the property of Vusion or that of our suppliers or licensors and are protected by patent, trademark and/or copyright under United States and/or foreign laws. Except as otherwise provided herein, you may not use, download, upload, copy, print, display, perform, reproduce, publish, modify, prepare derivative works from, delete, add to, license, post, transmit, or distribute any Content from this Site in whole or in part, for any public or commercial purpose without the specific written permission of Vusion. Vusion hereby grants you a personal, non-exclusive, non-transferable license to access the Site, and to use the information and services available on the Site. Except as otherwise provided herein, use of the Site does not grant you a license to any Content, features or materials you may access on the Site. You hereby grant to Vusion a non-exclusive, royalty-free license to use any

2. Modifications to the Site. Vusion reserves the right, for any reason, in its sole discretion and without notice to you, to terminate, change, suspend or discontinue any aspect of the Site, including, but not limited to, Content, features and/or hours of availability, and may not be liable to you or to any third party for doing so. Vusion may also impose rules for and limits on use of the Site or restrict your access to part, or all, of the Site without notice or penalty.

3. Prohibited Uses. The Site may be used only for lawful purposes. You are responsible for your own communications, including the upload, transmission and posting of information, and are responsible for the consequences of their posting on or through the Site. Vusion specifically prohibits any use of the Site, and requires all users to agree not to use the Site, for any of the following: (a) posting any (i) information which is incomplete, false, inaccurate or not your own, (ii) trade secrets or material that is copyrighted or otherwise owned by a third party unless you have a valid license from the owner which permits you to post it or (iii) material that infringes on any other intellectual property, privacy or publicity right of another; (b) impersonating another person; (c) engaging in or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any city, state, national or international law or regulation, or which fails to comply with accepted Internet protocol; or (d) transmitting or transferring (by any means) information or software derived from the Site to foreign countries or certain foreign nations in violation of US export control laws.

4. Security Rules. Violations of the Site’s or Vusion’s system or network security may result in civil or criminal liability. Vusion will investigate occurrences and may involve, and cooperate with, law enforcement authorities in prosecuting the user or users who are involved in such violations. You are prohibited from violating or attempting to violate the security of the Site or Vusion’s system or network security, including, without limitation, the following: (a) accessing data not intended for users of the Site or gaining unauthorized access to an account, server or any other computer system; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures; (c) attempting to interfere with the function of the Site, host or network, including, without limitation, via means of submitting a virus to the Site, overloading, “flooding”, “mailbombing”, “crashing”, or sending unsolicited e-mail, including promotions and/or advertising of products or services; or (d) forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.

5. Privacy Policy; User Information. In the course of your use of the Site, you may be asked to provide certain information to us. Vusion’s use of any information you provide via the Site shall be governed by our Privacy Policy available at www.Vusion.com/privacy. We urge you to read our Privacy Policy. You acknowledge and agree that you are solely responsible for the accuracy and content of such information.

6. International Use and Compliance with Laws. We control and operate the Site from our offices in the United States of America, and all information is processed within the United States. We do not represent that materials on the Site are appropriate or available for use in other locations. Persons who choose to access the Site from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable. You agree to comply with all applicable laws, rules and regulations in connection with your use of the Site.

7. Vusion Service. “Vusion Service” means the video transcoding, storage and streaming services provided by Vusion (as described more fully on the Site), and available to users of the Site that have registered and opened an account on the Site.

  • (a) Account and Registration. Prior to using the Vusion Service, Vusion requires that you create an account (“Account”) and provide certain information to Vusion (“Registration Information”). If you do not provide the Registration Information your access to and use of the Vusion Service may be limited. In addition, Vusion reserves the right to terminate or suspend your use of the Vusion Service if you provide incomplete or inaccurate Registration Information. Registration Information is subject to Vusion’s Privacy Policy referenced in Section 5 of these Terms.
  • (b) Password. Access to your Account will require a unique password selected by you. You are solely responsible for the protection of your password, and any use of your Account by you or any third party which comes into possession or knowledge of your password. In the event of a suspected or actual breach of security related to your Account, you agree to notify Vusion immediately. Vusion shall not be liable for any loss or damage resulting from a breach of the security of your Account due to the disclosure or discovery of your password.
  • (c) Customer Content. “Customer Content” means any content provided by you to Vusion for use in connection with the Vusion Service, including, but not limited to, video, audio and data content. You hereby grant to Vusion, a non-exclusive right and license to use, reproduce, publicly display, prepare derivative works of and distribute the Customer Content, solely in connection with, and as reasonably necessary to provide, the Vusion Service and to reproduce and publicly display the Customer Content in the “Showcase” section of the Site in connection with the marketing of the Vusion Service. You hereby represent and warrant with respect to the Customer Content that: (i) you own or have obtained all necessary licenses and rights in and to the Customer Content, and all necessary consents, waivers and permissions from any third party, to grant the licenses set forth herein; the Customer Content does not and will not violate the copyright, trademark, trade secrets, rights in image, likeness, publicity or name, or other intellectual property rights of any third party, and Customer agrees to pay for all royalties, fees, and any other monies owing any person or entity by reason of any Customer Content distributed by you using the Vusion Service, (ii) you are solely responsible for the content of your videos and ensuring that they are in compliance with all applicable laws and regulations, including but not limited to providing certain record location information under 18 USC 2257 and corresponding regulations where applicable.
  • (d) Prohibited Content. You agree not to use the Vusion Service to distribute Prohibited Content. Vusion reserves the right to investigate the distribution by you through use of the Vusion Service of any Prohibited Content, and to suspend, in part or in whole, your access to the Vusion Service if Vusion determines that such activity has taken place. “Prohibited Content” includes, without limitation, Customer Content that: (i) is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (ii) contains child pornography, material that is illegal to host or distribute; (iii) solicits personal information from anyone under 18; (iv) publicly posts information that poses or creates a privacy or security risk to any person; (v) constitutes or promotes information that you know or should know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (vi) furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses; (vii) solicits from end users passwords or personal identifying information for commercial or unlawful purposes; or (viii) contains computer viruses, bots, worms, or any other harmful computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorized use of or access to a computer or a computer network.
  • (e) Fees. As a condition of your right to access and use the Vusion Service, you agree to promptly pay any fees charged by Vusion for the Vusion Service. All amounts due are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and you will be responsible for payment of all such taxes (other than taxes based on Vusion’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, costs and expenses, or the performance of the Vusion Service. Should you be required under any law or regulation of any governmental entity or authority to withhold or deduct any portion of the payments due to Vusion, then the sum payable to Vusion shall be increased by the amount necessary to yield to Vusion an amount equal to the sum it would have received had no withholdings or deductions been made.
  • (f) Termination or Suspension of Access to the Vusion Service. Vusion reserves the right to terminate immediately or suspend access to the Vusion Service and your Account as a result of any breach by you of these Terms, including without limitation, for: (i) any use of the Vusion Service which constitutes unlawful conduct under any applicable law, rule or regulation in any local, state, federal or foreign jurisdiction; (ii) violation of Vusion’s restrictions on Prohibited Content; (c) interference with the proper function of the Site; or (d) violation of third party rights such as copyright, trademark and rights of privacy and publicity.

8. Proprietary Rights. As between you and Vusion, (or other company whose marks appear on the Site), Vusion (or the respective company) is the owner and/or authorized user of any trademark, registered trademark and/or service mark appearing on the Site, and is the copyright owner or licensee of the Content and/or information on the Site, unless otherwise indicated. In particular, the Vusion logos and service names are trademarks of Vusion (the “Vusion Marks”). Without Vusion’s prior permission, you agree not to display or use Vusion Marks in any manner. Nothing on the Site should be construed to grant any license or right to use any Vusion Mark without the prior written consent of Vusion. Vusion Marks may be registered in the United States and internationally.

9. Links from and to the Site. Express, written consent must be granted by Vusion for any type of link to the Site. Vusion reserves the right to deny any request or rescind any permission granted to link through such other type of link, and to require termination of any such link to the Site, at its discretion at any time. You may be able to link to third party websites (“Linked Sites”) from the Site. Linked Sites are not, however, reviewed, controlled or examined by Vusion in any way and Vusion is not responsible for the content, availability, advertising, products, information or use of user information or other materials of any such Linked Sites, or any additional links contained therein. These links do not imply Vusion’s endorsement of or association with the Linked Sites. It is your sole responsibility to comply with the appropriate terms of service of the Linked Sites as well as with any other obligation under copyright, secrecy, defamation, decency, privacy, security and export laws related to the use of such Linked Sites and any content contained thereon. In no event shall Vusion be liable, directly or indirectly, to anyone for any loss or damage arising from or occasioned by the creation or use of the Linked Sites or the information or material accessed through these Linked Sites. You should direct any concerns to that site's administrator. Vusion reserves the exclusive right, at its sole discretion, to add, change, decline or remove, without notice, any feature or link to any of the Linked Sites from the Site and/or introduce different features or links to different users.

10. Indemnity. You agree to defend, indemnify and hold Vusion, its directors, officers, employees, agents and affiliates harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys' fees, in any way arising from, related to or in connection with your use of the Site and/or the Vusion Service, your violation of these Terms or the posting or transmission of any materials (including Customer Content) on or through the Site by you, including, but not limited to, any third party claim that any information or materials you provide infringes any third party proprietary right.

11. DISCLAIMER OF WARRANTIES. THE SITE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, FUNCTION, MATERIALS AND SERVICES IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS, OR CONTENT OF INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. VUSION DOES NOT WARRANT THAT THE SITE OR THE FUNCTION, CONTENT OR SERVICES MADE AVAILABLE THEREBY WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. VUSION MAKES NO WARRANTY THAT THE SITE WILL MEET USERS’ EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, OR MATERIALS WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IF YOU ARE DISSATISFIED WITH THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE.

12. LIMITATION OF LIABILITY. IN NO EVENT SHALL VUSION, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTENT OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM OR DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SITE OR THE CONTENT, MATERIALS AND FUNCTION RELATED THERETO, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, OR ANTICIPATED PROFITS, OR LOST BUSINESS, DATA OR SALES, OR COST OF SUBSTITUTE SERVICES, EVEN IF VUSION OR ITS REPRESENTATIVE OR SUCH INDIVIDUAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL LIABILITY OF VUSION TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS OR YOUR USE OF THE SITE EXCEED, IN THE AGGREGATE, $100.00.

13. Applicable Law/Jurisdiction. You agree that the laws of the state of California, excluding its conflicts-of-law rules, shall govern these Terms. Please note that your use of the Site may be subject to other local, state, national, and international laws. Any controversy or claim arising out of or relating to your use of the Site (including any claim involving Vusion or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers and content providers) shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules conducted in San Mateo County, California, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. You consent to jurisdiction of the state and federal courts of California for enforcement of this arbitration provision..

14. Digital Millennium Copyright Act Compliance. If you are a copyright owner or an agent thereof, and you believe that any content hosted on the Site infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Vusion’s Designated Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail): (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Vusion Service are covered by a single notification, a representative list of such works at the Vusion Service; (c) 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 Vusion to locate the material; (d) information reasonably sufficient to permit Vusion to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (e) 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; and (f) 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.

Vusion's Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows: Copyright Agent at 300 Orchard City Drive, Suite 100A, Campbell, CA or by email at copyright@Vusion.com. For clarity, only DMCA notices should go to the Vusion Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Vusion customer service through service@Vusion.com. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.

15. General Information. The section titles in the Terms are for convenience only and have no legal or contractual effect. You agree that no joint venture, partnership, employment, or agency relationship exists between Vusion and you as a result of this Agreement or your use of the Site. Any claim or cause of action you may have with respect to Vusion or the Site must be commenced within one (1) year after the claim or cause of action arose. The failure of Vusion to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these 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 these Terms remain in full force and effect. You may not assign these Terms or any of your rights or obligations under these Terms without Vusion’s express written consent. These Terms inure to the benefit of Vusion’s successors, assigns and licensees. The Terms constitute the entire agreement between you and Vusion and govern your use of the Site, superseding any prior agreements between you and Vusion. You also may be subject to additional terms and conditions that are applicable to certain parts of the Site.

© Copyright 2009 by Vusion, Inc. All rights reserved.