End-User License Agreement

VIDEOPUBLISHING.COM, LLC END USER LICENSE AGREEMENT

REDISTRIBUTION NOT PERMITTED

This End User License Agreement is for services and software provided by VideoPublishing.com, LLC.

Last updated: August 31, 2009.

IMPORTANT – PLEASE READ CAREFULLY: This End User License Agreement ("EULA") constitutes a legal agreement between you (either an individual or an entity) and VideoPublishing.com, LLC, its suppliers, successors and licensors (collectively, "VideoPublishing.com") and governs your use of all hosted services and software provided by VideoPublishing.com, which includes, but is not limited to the hosted services made available through the VideoPublishing.com domain and the ProUploader software product (collectively, the “Technologies”).
By clicking on the "I Accept" button and accessing, installing, copying or otherwise using the Technologies, you agree that your use is subject to this EULA, and that the use of any individual who may access and use your accounts and instances of the Technologies, is subject to this EULA. All uses of any VideoPublishing.com products or services are subject to VideoPublishing.com’s Privacy Policy located at http://www.VideoPublishing.com/privacy ("Privacy Policy") and VideoPublishing.com’s Terms of Use located at http://www.VideoPublishing.com/tou (‘Terms of Use”), EACH OF WHICH MAY BE UPDATED FROM TIME TO TIME BY VIDEOPUBLISHING.COM, AT ITS SOLE DISCRETION.
By accepting this EULA, you represent that you are authorized to use the Technologies and accept the obligations set forth herein on your own behalf or on behalf of another person or entity. Any and all unauthorized use of the Technologies is explicitly and strictly prohibited. YOUR USE OF THE TECHNOLOGIES ACKNOWLEDGES THAT YOU HAVE READ THIS EULA, UNDERSTAND IT, AND AGREE TO BE FULLY BOUND BY ALL OF ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, CLICK ON THE "Cancel" BUTTON AND DO NOT ACCESS, DOWNLOAD, INSTALL OR USE THE TECHNOLOGIES IN ANY WAY, FORM OR METHOD.

VIDEOPUBLISHING.COM RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO ALTER OR UPDATE THE TECHNOLOGIES INCLUDING, BUT NOT LIMITED TO, ARCHITECTURE, FEATURES, SPECIFICATIONS, CAPABILITIES, FUNCTIONS, LICENSING TERMS, INTEGRATIONS, PARTNERSHIPS, RELEASE DATES, ALPHA PROGRAMS, BETA PROGRAMS, GENERAL AVAILABILITY OR OTHER CHARACTERISTICS (“Changes”). By continuing to use the Technologies after any such Changes, you agree to be bound by such Changes and continue to be bound by this EULA, and you acknowledge that VideoPublishing.com shall have no liability to you, of any kind, as a result of any such Changes.

1. Definitions.

1.1 "Account" means either a corporate or individual user account created by you, or an administrator on your behalf, when accessing or installing the Technologies and used to make selections with respect to, without limitation, the settings, preferences, profile information, presentation, management, distribution and end user access to Content of any kind.

1.2 "Content" means any and all audio and video materials including, without limitation, film, text, logos, artwork, graphics, pictures, advertisements, sound, and other form of intellectual property, whether in still, live or animated form, contained in materials uploaded, or provided to VideoPublishing.com or into the Technologies, in any method or form, by you, or by administrators on your behalf.

1.3 "Technologies" means any hosted service or installable product, of any form, provided by VideoPublishing.com, which includes, but is not limited to, the services accessed through the VideoPublishing.com domain and VideoUploader.

2. Grant of Licenses; Scope of License; Restrictions.

2.1 Grant of Licenses.
(a) Technologies. Provided you comply with the terms and conditions of this EULA, and subject to contracts that define rights to use specific subsets of the Technologies, VideoPublishing.com hereby grants to you during the term permitted by VideoPublishing.com, a non-exclusive, non-transferable, limited license, without right of sublicense, to access, download and use the Technologies to reproduce, transmit and display Content.

(b) Content Delivery. You hereby grant VideoPublishing.com a world-wide, royalty-free, non-exclusive license to: (i) deliver Content in accordance with the preferences you set using your Account; (ii) upload, download, secure, encode, reproduce, host, stream, transmit, syndicate, cache, route, reformat, analyze and create algorithms and reports based on any of these actions, access to and use of the Content; (iii) exhibit, broadcast, publicly display, publicly perform, distribute, copy, store, add metadata and associations, and/or reproduce the Content on or through the Technologies; and (iv) utilize Content to test the internal technologies or processes of VideoPublishing.com and its partner firms.

2.2 Scope of Use.
(a) Responsibility for Content. You are solely responsible for all matters arising out of or in connection with the Content including, without limitation, ensuring that the Content does not include Prohibited Content and does not violate any third party rights, as further described elsewhere in this EULA.

(b) Content. The Technologies are passive conduits of online Content. You acknowledge VideoPublishing.com is not responsible for preventing or identifying infringement of intellectual property rights and assumes no responsibility for monitoring for possible infringement or enforcing intellectual property rights. For any infringement or suspected infringement of intellectual property rights, you will notify VideoPublishing.com in accordance with VideoPublishing.com’s DMCA Notification Policy, available at http://www.VideoPublishing.com/tou.

(c) Third Party Materials. The Technologies may include third party components that may be subject to their own, separate license agreements.

(d) Tracking. The Technologies contain software to track and capture activity, including individual users, to assist VideoPublishing.com in optimizing delivery of Content and for the purposes of developing and facilitating algorithms and reports. Your use of the Technologies constitutes acceptance of these features. For further information on how such software is used, please review VideoPublishing.com’s Privacy Policy located at http://www.VideoPublishing.com/privacy. If you engage in, or assist or enable, for syndication of Content on third party websites, you, and not VideoPublishing.com, are solely responsible for notifying each such third party website that VideoPublishing.com may track and capture such information.

2.3 Restrictions.
(a) Technologies. You are expressly prohibited from: (a) selling, renting, leasing, sublicensing, otherwise transferring or distributing any copies of the Technologies to third parties; (b) modifying, translating, reverse engineering, decompiling, or disassembling the Technologies or altering any accompanying documentation; (c) creating derivative works based upon the Technologies; (d) altering, destroying or otherwise removing any proprietary notices, images or logos displayed, provided on or embedded within the Technologies; (e) restricting or inhibiting others use or enjoyment of the Technologies; (f) gaining unauthorized access to other Accounts; (g) impersonating or otherwise misrepresenting any person or entity, or making false or misleading indications of origin or fact; or (h) interfering with or disrupting the Technologies or VideoPublishing.com’s servers or networks connected thereto, through any manner whatsoever, or disobeying any requirements, procedures, policies or regulations of networks connected to the Technologies.

(b) Content. Nothing in this EULA shall be construed to grant, by implication, estoppel, or otherwise, any license or right to use any third party Content accessed via the Technologies, without the prior written permission of the Content owner. Any and all rights not expressly granted herein are reserved to VideoPublishing.com, its licensors, suppliers or third party Content owners. You are solely responsible for all matters arising out of or in connection with the Content including, without limitation, compliance with all applicable laws, rules and regulations, and obtaining all third party or other rights, approvals, licenses, consents, waivers, and other permissions necessary for the Technologies to be utilized hereunder. You are solely responsible for maintaining copies of the Content and shall take precautionary measures to backup and protect it. VideoPublishing.com has no obligation to provide you (or any third party) with backup or archival copies of any Content uploaded or distributed via the Technologies.

(c) Prohibited Content. You shall not use the Technologies to upload, download, post, e-mail, transmit, transfer, distribute, display or link to Content that: (a) promotes illegal activity, or provides instructions for illegal activity; (b) exploits images or discloses personally identifiable information of children under eighteen (18) years of age or otherwise harms minors in any way; (c) it does not have the right to use for the purposes of the Technologies; (d) is unlawful, harmful, threatening, abusive, violent, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of privacy or publicity rights, hateful or racially, sexually, ethnically or otherwise objectionable; (e) infringes the intellectual property or proprietary rights of any third party; (f) is in any way related to any raffle, sweepstakes, contest or game requiring a fee by participants; (g) directly or indirectly is used for "junk mail", "spam", "chain letters", "pyramid schemes", or any other like form of solicitation; and (h) contains any malicious or invasive software, or that could diminish the quality of, interfere with the performance of, or impair the functionality of the Technologies (collectively, the “Prohibited Content”). Additionally, you are prohibited from advertising, offering for sale, or selling any item prohibited from advertising or selling by any applicable local, state, national, or international law, including regulations having the force of law, or advertise, offer for sale, or sell any of the following items:

• • Any firearms, explosives, or weapons.
• • Any food that is not packaged or does not comply with all laws governing the sale of food to consumers by commercial merchants.
• • Any alcoholic beverages.
• • Any tobacco products for human consumption, including, without limitation, cigarettes and cigars.
• • Any items that are indecent or obscene, that are hateful or racially, sexually, ethnically or otherwise objectionable, that contain child pornography, that are otherwise pornographic in nature, or are harmful to minors.
• • Any controlled substances or pharmaceuticals.
• • Any items that are counterfeit or stolen.
• • Any dangerous items.
• • Any goods or services that do not, in fact, exist.
• • Any registered or unregistered securities.
• • Any items that violate or infringe the rights of other parties.
• • Any items that you do not have the legal right to sell.
• • Any items where doing so through VideoPublishing.com or the Service would cause VideoPublishing.com to violate any law.

You expressly acknowledge and agree that VideoPublishing.com may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the Terms and Conditions; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of VideoPublishing.com, its users and the public. You acknowledge and agree that the technical processing and transmission of the Services, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. You further acknowledge and agree that other data collected and maintained by VideoPublishing.com with regard to its users may be disclosed in accordance with VideoPublishing.com's Privacy Policy.

(d) Age Restriction . Any person under the age of eighteen (18) or who does not have permission from their parent or guardian is not authorized to access or use the Technologies, and must immediately cease all access to, and use of the Technologies.

3. Alpha and Beta Release

VideoPublishing.com may make certain Technologies available as an alpha release or as a beta release, which shall be identified as such (“Alpha Version” or “Beta Version”). The Alpha Version or Beta Version may contain different features than the final version that VideoPublishing.com intends to distribute commercially. VideoPublishing.com reserves the right at any time not to release a commercial version of the Alpha Version or Beta Version, or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics. You agree that the Alpha Version or Beta Version may not be suitable for production or commercial use and may contain bugs or errors affecting its proper operation. You shall comply with all conditions associated with an Alpha Version or Beta Version, including, without limitation, de-installing or ceasing use of an Alpha Version or Beta Version and installing updated versions of the Technologies to replace an Alpha Version or Beta Version.

4. Automatic Updates/Communication Features

The Technologies may automatically communicate with VideoPublishing.com's servers to check for updates such as bug fixes, patches, enhanced functions, notifications, alerts, updates, and new versions of the Technologies. At no charge to you, VideoPublishing.com may require the installation of software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Account (collectively, “Updates”). Updates shall be subject to all of the terms and conditions of this EULA. VideoPublishing.com may, from time to time, post notices on the VideoPublishing.com website or blogs or other public communications tools (such as through its FaceBook, Twitter, and other third party services), to explain Updates and provide instructions to users associated with such Updates.

5. Compliance with U.S. Laws

The Technologies are of U.S. origin. You shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which you use the Technologies, including, without limitation, all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. For clarity, you, and not VideoPublishing.com, shall be responsible for ensuring that your use of the Technologies, does not constitute a criminal offense, give rise to civil liability or otherwise violates any applicable law, regulation or ordinance, including, without limitation, U.S. law, regarding the transmission of copyrighted, trademarked Content or personally-identifiable information or controlled technical data.

6.Termination

VideoPublishing.com may terminate or suspend your access to the Technologies: (a) should you fail to comply with a term or condition this EULA and/or any applicable services agreement between you and VideoPublishing.com; (b) for any conduct that VideoPublishing.com believes is or may be directly or indirectly harmful to other users, to VideoPublishing.com or its subsidiaries, affiliates, or business contractors, or to other third parties; (c) for any conduct that violates any local, state, federal, or foreign laws or regulations; (d) for user inactivity; or (e) if VideoPublishing.com reasonably determines that your access to the Technologies may be detrimental to VideoPublishing.com or any third party. VideoPublishing.com also may suspend or terminate any user account for any Service because of user inactivity. For example, a VideoPublishing.com account may be terminated or suspended if a user fails to sign-in to the VideoPublishing.com Service for an extended period of time. What is considered "user inactivity" varies depending on the Service. If one of your accounts is suspended or terminated for inactivity, your right to use such Service immediately ceases.

7. Title.

VideoPublishing.com owns all right, title and interest in and to the Technologies including associated intellectual property rights under copyright, trade secret, patent, trademark and/or other applicable domestic and international laws. Any and all trademarks that VideoPublishing.com uses in connection with the Technologies are owned by VideoPublishing.com and any goodwill associated with the use of such marks shall inure to the benefit of VideoPublishing.com. VideoPublishing.com is not required to accept unsolicited feedback. If you provide any feedback, whether solicited or not, about the Technologies to VideoPublishing.com, VideoPublishing.com shall own all rights in and to such feedback and any derivative technologies developed on such feedback. You shall take all necessary actions to affect VideoPublishing.com’s rights in and to such feedback.

8. Disclaimer of Warranties

VIDEOPUBLISHING.COM MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY OF THE TECHNOLOGIES FOR YOUR PURPOSES, THAT THE USE OF THE TECHNOLOGIES SHALL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE TECHNOLOGIES SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY TECHNOLOGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. THE TECHNOLOGY IS PROVIDED “AS IS" AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE TECHNOLOGY MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS AND VIDEOPUBLISHING.COM IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND VIDEOPUBLISHING.COM’S REASONABLE CONTROL.

9. Warranty; Indemnification

You represent and warrant that you are solely responsible and liable for: (a) obtaining all necessary consents, permissions, licenses and waivers from copyright owners, artist(s), actors, directors, performers, writers, producers, or any other individuals who appear in the Content or the results and proceeds of whose services are utilized in the Content; (b) obtaining any required synchronization and master use licenses from the owners of the musical compositions and sound recordings embodied in the Content (or their designated representatives); (c) any payments to any labor unions and guilds, to the extent required under applicable collective bargaining agreements or otherwise (e.g., residuals, re-use, rerun and other similar fees); (d) obtaining public performance licenses from public performance rights collection organizations (e.g., ASCAP, BMI or SESAC); (e) complying with all laws, rules and applicable regulations; (f) any Prohibited Content; and (g) abiding by all the terms of this EULA. You shall defend, indemnify and hold VideoPublishing.com harmless against any and all claims, damages, costs and expenses (including reasonable attorneys’ fees and litigation expenses) arising out of or in connection with your breach of this EULA, including but not limited to any of the representations or warranties set forth herein..

10. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VIDEOPUBLISHING.COM BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS EULA OR THE USE OF OR INABILITY TO USE THE TECHNOLOGIES, EVEN IF VIDEOPUBLISHING.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR EXCLUSIVE REMEDY AND VIDEOPUBLISHING.COM’S TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS EULA FOR ANY REASON SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY YOU, UP TO THE GREATER OF THE AMOUNTS PAID DIRECTLY TO VIDEOPUBLISHING.COM FOR USE OF THE TECHNOLOGIES OR ONE THOUSAND U.S. DOLLARS ($1,000.00). THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE FOR ANY REASON. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU. THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT VIDEOPUBLISHING.COM’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THIS EULA.

11. Government Restricted Rights

If the Technologies are licensed for use by the United States or in the performance of a U.S. government prime contract or subcontract, you agree that the Technologies are delivered as: (a) “commercial computer software” as defined in DFARS 252.227-7013, Rights in Technical Data—Noncommercial Items (Oct 1988), DFARS 252.227-7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation (Jun 1995), and DFARS 252.211-7015 Technical Data Commercial Items (May 1991); (b) as a “commercial item” as defined in FAR 2.101; or (c) as “restricted computer software” as defined in FAR 52.227-19, Commercial Computer Software—Restricted Rights (Jun 1987); whichever is applicable. The use, duplication, and disclosure of the Technologies by the Department of Defense shall be subject to the accompanying license agreement provided in DFARS 227.7202 (Oct 1998). All other use, duplication or disclosure of the Technologies by the U.S. government will be subject to the accompanying license agreement and restrictions set forth in FAR 52.227-19©, Commercial Computer Software—Restricted Rights (Jun 1987), or FAR 52.227-14, Rights in Data—General Alternative III (Jun 1987). Contractor/licensor is VideoPublishing.com, Inc., POBOX 8458, Reston VA 20195

12. Governing Law; Dispute Resolution

This EULA shall be governed by the laws of the State of Delaware as such laws apply to contracts between Delaware residents performed entirely within Delaware, without regard to conflict of law provisions. Any action or proceeding arising from or relating to this EULA may be brought in the State and Federal courts located in Delaware and each party irrevocably submits to such exclusive jurisdiction and venue.

13. Entire Agreement

This EULA constitutes the complete and exclusive agreement between you and VideoPublishing.com with respect to its subject matter; provided, however, that if you and VideoPublishing.com enter into a written services agreement or some other written agreement that expressly incorporates this EULA by reference, then this EULA shall be subject to such other agreement as set forth therein. If any provision of this EULA is held unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances.

14. Enforcement

The failure of you or VideoPublishing.com to enforce any right or provision in this EULA shall not constitute a waiver of such right or provision.

15. Relationship

You and VideoPublishing.com are independent contractors, no joint venture, partnership, employment, agency or exclusive relationship exists between you and VideoPublishing.com as a result of this EULA or your use of the Technologies as authorized hereunder.

16. Assignment

You may not transfer or assign this EULA or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of VideoPublishing.com. This Agreement shall inure to the benefit of and be binding upon VideoPublishing.com’s or your respective successors and permitted assigns.

17. Headings.

The headings within this document are provided solely as a measure of convenience, and they will not have any bearing on the interpretations or enforcement of this EULA.