eMax - Terms of Use

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eMax Terms of Use Last updated: May 7, 2007 Welcome to eMax! By using eMax's web sites ("eMax services"), you agree to the following terms and conditions, and any policies, guidelines or amendments thereto that may be presented to you from time to time, including but not limited to Program Policies and Legal Notices (collectively known as the "Terms"). We may update the Terms in the future, and you will be able to find the most current version of this agreement at http://www.emax.net/termsofuse.php. 1. Use of eMax Services eMax Corporation offers eMax services to you, provided that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. In order to access certain services, you may be required to provide current, accurate identification, contact, and other information as part of the registration process and/or continued use of eMax services. You are responsible for all activities that occur under your account. You agree to immediately notify eMax of any unauthorized use of your account or any other breach of security. eMax cannot and will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your account secure. 2. Appropriate Conduct You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Content") are the sole responsibility of the person from which such Content originated. eMax reserves the right, but shall have no obligation, to pre-screen, flag, filter, refuse, modify or move any Content available via eMax services. You understand that by using eMax services you may be exposed to Content that is offensive, indecent or objectionable, and that you use eMax services at your own risk. You agree that you are responsible for your own conduct and any Content that you create, transmit or display while using eMax services and for any consequences thereof. You agree to use eMax services only for purposes that are legal, proper and in accordance with the Terms and any applicable policies or guidelines. You agree that you will not engage in any activity that interferes with or disrupts eMax services or servers or networks connected to eMax services. To report any activity or Content that may violate the Terms, please notify the eMax Administrator at info(AT)emax.net. Users outside of the United States agree to comply with their own local rules regarding online conduct and acceptable content, including laws regulating the export of data to and from the United States or your country of residence. 3. eMax Privacy Policy By using eMax services, you acknowledge and agree that eMax may access, preserve, and disclose your account information and any Content associated with that account if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (1) satisfy any applicable law, regulation, legal process or enforceable governmental request, (2) enforce the Terms, including investigation of potential violations hereof, (3) detect, prevent, or otherwise address fraud, security or technical issues (including, without limitation, the filtering of spam), or (4) protect against imminent harm to the rights, property or safety of eMax, its users or the public as required or permitted by law. You understand that the technical processing and transmission of eMax services, including your Content, may involve (1) transmissions over various networks; and (2) changes to conform and adapt to technical requirements of connecting networks, devices or services. You also understand and agree that the eMax Administrator may have access to your account and its content, and may suspend or terminate your account access and your ability to modify your account. 4. Intellectual Property Rights The content on the eMax web sites, except all Creative Partnership Submissions (as defined below), including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like ("Content") and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to eMax, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Content on the Website is provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. eMax reserves all rights not expressly granted in and to the Website and the Content. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, ordistribution of User Submission of third parties obtained through the Website for any commercial purposes. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the eMax Website or features that prevent or restrict use or copying of any Content or enforce limitations on use of the eMax Website or the Content therein. 5. Creative Partnership Submission A. The eMax services may now or in the future permit the submission of videos or other communications submitted by you and other users ("Creative Partners") and the hosting, sharing, and/or publishing of such User Submission. You understand that whether or not such Creative Partner Submission are published, eMax does not guarantee any confidentiality with respect to any Submission. B. You shall be solely responsible for your own Creative Partner Submission and the consequences of posting or publishing them. In connection with Creative Partner Submission, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize eMax to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all Creative Partner Submission to enable inclusion and use of the User Submission in the manner contemplated by the Website and these Terms of Service; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the Creative Partner Submission in the manner contemplated by the Website and these Terms of Service. For clarity, you retain all of your ownership rights in your Creative Partner Submission. However, by submitting the Creative Partner Submission to eMax, you hereby grant eMax a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Creative Partner Submission in connection with the eMax services and eMax's (and its successor's) business, including without limitation for promoting and redistributing part or all of the eMax services (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the eMax services a non-exclusive license to access your Creative Partner Submission through the eMax services, and to use, reproduce, distribute, prepare derivative works of, display and perform such Creative Partner Submission as permitted through the functionality of the services and under these Terms of Service. The foregoing license granted by you terminates once you remove or delete a Creative Partner Submission from the eMax services. C. In connection with Creative Partner Submission, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant eMax all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage eMax or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business: (v) impersonate another person. eMax does not endorse any Creative Partner Submission or any opinion, recommendation, or advice expressed therein, and eMax expressly disclaims any and all liability in connection with Creative Partner Submission. eMax does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and eMax will remove all Content and Creative Partner Submission if properly notified that such Content or Creative Partner Submission infringes on another's intellectual property rights. eMax reserves the right to remove Content and Creative Partner Submission without prior notice. eMax will also terminate a Creative Partner's access to its Website, if they are determined to be a repeat infringer. A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had a Creative Partner Submission removed from the Website more than twice. eMax also reserves the right to decide whether Content or a Creative Partner Submission is appropriate and complies with these Terms of Service for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material, or excessive length. eMax may remove such Creative Partner Submission and/or terminate a Creative Partner's access for uploading such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion. D. In particular, if you are a copyright owner or an agent thereof and believe that any Creative Partner Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) 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 the service provider to locate the material; (iv) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail; (v) 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 (vi) 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. eMax's designated Copyright Agent to receive notifications of claimed infringement is: Michael Louie, 419 Forest Ave., Palo Alto, CA 94301, email: mike.louie(AT)emax.net. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to eMax customer service through info@emax.net. You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid. E. You understand that when using the eMax services, you will be exposed to Creative Partner Submissions from a variety of sources, and that eMax is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Creative Partner Submissions. You further understand and acknowledge that you may be exposed to Creative Partner Submission that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against eMax with respect thereto, and agree to indemnify and hold eMax, its Owners/Operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the site. F. eMax permits you to link to materials on the Website for personal, non-commercial purposes only. In addition, eMax provides an "Embeddable Player" feature, which you may incorporate into your own personal, non-commercial websites for use in accessing the materials on the Website, provided that you include a prominent link back to the eMax website on the pages containing the Embeddable Player. eMax reserves the right to discontinue any aspect of the eMax Website at any time. 5. Personal Non-Commercial Use You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of eMax services, use of eMax services, or access to eMax services except as otherwise expressly provided in the Terms or as specifically authorized in a separate written agreement. 6. Modifications to eMax Services eMax reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, eMax services (or any part thereof) with or without notice. You agree that eMax shall not be liable to you or to any third party for any modification, suspension or discontinuance of eMax services. 7. Termination You may discontinue your use of eMax services at any time. You agree that eMax may at any time and for any reason, including a period of account inactivity, terminate your access to eMax services, terminate the Terms, or suspend or terminate your account. In the event of termination, your account will be disabled and you may not be granted access to eMax services, your account or any files or other content contained in your account. Sections 7 (Termination), 9 (Indemnity), 10 (Disclaimer of Warranties), 11 (Limitations of Liability), 12 (Exclusions and Limitations) and 15 (including choice of law, severability and statute of limitations), of the Terms, shall survive expiration or termination. 8. Links eMax services may provide, or third parties may provide, links to other World Wide Web sites or resources. eMax may have no control over such sites and resources and you acknowledge and agree that eMax is 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 eMax 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. 9. Indemnity You agree to hold harmless and indemnify eMax, and its officers, agents, employees, advertisers, licensors, suppliers or partners, (collectively "eMax and Partners") from and against any third party claim arising from or in any way related to your use of eMax services, violation of the Terms or any other actions connected with use of eMax services, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, eMax will provide you with written notice of such claim, suit or action. 10. DISCLAIMER OF WARRANTIES YOU EXPRESSLY UNDERSTAND AND AGREE THAT: 1. YOUR USE OF EMAX SERVICES IS AT YOUR SOLE RISK. EMAX SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EMAX AND PARTNERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. 2. EMAX AND PARTNERS DO NOT WARRANT THAT (i) EMAX SERVICES WILL MEET YOUR REQUIREMENTS, (ii) EMAX SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF EMAX SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH EMAX SERVICES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. 3. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF EMAX SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. 4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EMAX OR THROUGH OR FROM EMAX SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS. 11. LIMITATION OF LIABILITY YOU EXPRESSLY UNDERSTAND AND AGREE THAT EMAX AND PARTNERS SHALL NOT BE LIABLE TO YOU 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 EMAX OR PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE EMAX SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM EMAX SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON EMAX SERVICES; OR (v) ANY OTHER MATTER RELATING TO EMAX SERVICES. 12. EXCLUSIONS AND LIMITATIONS NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN SECTIONS 10 AND 11 WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. 13. No Third Party Beneficiaries You agree that, except as otherwise expressly provided in the Terms, there shall be no third party beneficiaries to the Terms. 14. Notice You agree that eMax may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on eMax services. 15. General Information Entire Agreement: The Terms (including any policies, guidelines or amendments that may be presented to your form time to time such as Program Policies and Legal Notices) constitute the entire agreement between you and eMax and govern your use of eMax services, superceding any prior agreements between you and eMax for the use of eMax services. Choice of Law and Forum: The Terms and the relationship between you and eMax shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and eMax agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California. Waiver and Severability of Terms: The failure of eMax to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. 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. Statute of Limitations: 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 eMax services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section headings in the Terms are for convenience only and have no legal or contractual effect.