END USER LICENSE AGREEMENT
DO NOT ACCESS OR CREATE ANY MASH-UP TOOL VIDEO CONTENT SELECTIONS UNLESS YOU HAVE READ AND AGREE TO BE BOUND TO THE TERMS SET FORTH IN THIS END USER LICENSE AGREEMENT
CBS Interactive Inc ("CBSI") makes available to you ("you" or "your") the Campaign 2008 Video Mash-Up Tool ("2008 Mash-up Tool") video selections for viewing and creating your own mash-up videos as set forth in the 2008 Mash-Up Tool , subject to this End User License Agreement ("EULA"), which may be updated by CBSI from time to time without notice to you. It is important for you to refer to this EULA from time to time to make sure that you are aware of any additions, revisions, or modifications that CBSI may have made to this EULA. You can review the most current version of the EULA at any time at: http://www.______________________.
1. License, Proprietary Rights and Restrictions on Use.
Registered Users. Access to the comments functionality and content upload functionality is only available to registered users ("Registered Users") of one or more of the following Web sites, (i) CBSNews.com, CBSSports.com, CBS.com, CBSGames.com, and /or CBSGames.com (the "CBS Interactive Sites") who are thirteen (13) years of age or older. If you are not a Registered User you may become one by going to http://www.CBSNews.com and following the instructions. There is no cost or fee to become a Registered User.
Mash-Up Tool License. Subject to your compliance with this EULA, CBSI grants you a personal, non-transferable, non-commercial, non-exclusive, limited, revocable license, to view each Mash-Up Selection (in executable, object code form only) solely on one (1) Windows Media Player Real 9 installed on one (1) computer (your "Client Viewer") for the period such Mash-Up Selection is made available for viewing on CBSNews.com or any of its distribution partners as set forth in the 2008 Mash-Up Tool . Nothing in this EULA will be interpreted to mean, and CBSI does not grant you any right or license in any other CBSI materials or other proprietary images, trademarks, copyrighted works, artwork, copy, information, data, knowledge, computer software or any other material or information of any kind. You understand that the Mash-Up Tool is licensed for viewing solely for a limited time and are not sold.
Copyright Notices. The Mash-Up Tool and the content are protected by copyright pursuant to U.S. copyright laws, international conventions and other copyright laws, and are owned or controlled by CBSI. You will abide by any and all additional copyright notices, information, or restrictions contained in the video selections or as CBSI otherwise may impose from time to time. Moreover, you agree that you will not remove any proprietary notices or labels contained in or on the Mash-Up Tool.
Further Restrictions. You represent, warrant and covenant that you will not reverse engineer, decompile, translate, modify, obscure or develop derivative works based on, or otherwise attempt to discern the source code of, the Mash-Up Tool.
No Contest of Rights. You acknowledge and agree that you will not directly or indirectly contest or challenge or aid or abet in contesting or challenging the validity or ownership of the Mash-Up Tool or take any action whatsoever in derogation of CBSI's rights therein or in breach of any terms and conditions contained in this EULA. You acknowledge and agree that you will not acquire or claim any rights in the Mash-Up Tool or aid or abet anyone else in doing so.
Reservation of Rights. Any and all rights to use the Mash-Up Tool not expressly granted to you under this Agreement are hereby reserved for CBSI. Nothing contained in this Agreement will affect, impair, or limit in any way CBSI's rights to exploit fully any or all of the Mash-Up Tool.
Proprietary Rights. You acknowledge and agree that CBSI owns and will retain all rights, title and interest in and to the Mash-Up Tool, including, without limitation, all copies thereof and all rights to patents, copyrights, trademarks, service marks, trade secrets and other intellectual property rights inherent in this EULA and appurtenant thereto.
No License to CBSI Trademarks. Nothing in this EULA will be interpreted to mean, and CBSI does not grant you any right or license in any CBSI trademark, tradename, service mark, insignia, slogan, name, emblem, logo, symbol, design and/or other identifying characteristics owned by or associated with CBSI, its subsidiaries or affiliates, in any manner whatsoever.
2. Requirements for Viewing the Mash-Up Tool.
No Internet Connection Equipment Provided. CBSI will not be obligated to, and you acknowledge that CBSI will not, provide any bandwidth, modem, computer, or any other equipment, system or connectivity for you to connect to the Internet. You will be solely responsible for all modems, computers, operating systems connection devices and bandwidth necessary for connecting to the Internet through which you can download the Mash-Up Tool.
System Requirements. You understand and agree that the Mash-Up Tool is subject to system requirements and other limitations of use available at http://www.____________ and that the Mash-Up Tool will only operate if your system meets those requirements and limitation.
3. Registration Information.
4. Customer Support.
For assistance with registration questions or other order inquiries, please refer to our online FAQ.
5. Disclaimer of Warranties.
THE MASH-UP TOOL AND CBS INTERACTIVE SITES, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, SOFTWARE, DOCUMENTS, FUNCTIONS, MATERIALS, GRAPHICS, AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH OR SENT VIA THE MASH-UP TOOL OR CBS INTERACTIVE WEB SITES, ARE PROVIDED "AS IS," "AS AVAILABLE" AND "WITH ALL FAULTS." TO THE FULLEST EXTENT PERMISSIBLE BY LAW, CBSI AND ITS INDEPENDENT CONTRACTORS, INCLUDING WITHOUT LIMITATION, MIXERCAST INC., THEIR PARENTS, SUBSIDIARIES AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER ABOUT: (A) THE MASH-UP TOOL MADE AVAILABLE TO YOU; (B) THE MATERIALS, INFORMATION AND FUNCTIONS MADE ACCESSIBLE BY THE SOFTWARE USED ON OR ACCESSED THROUGH THE MASH-UP TOOL; (C) THE ABILITY OF THE MASH-UP TOOL TO WORK WITH YOUR CLIENT VIEWER; OR (E) ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE MASH-UP TOOL, YOUR CLIENT VIEWER OR THE CBS INTERACTIVE SITES. CBSI AND ITS INDEPENDENT CONTRACTORS DO NOT WARRANT THAT THE MASH-UP TOOL, THE FUNCTIONS CONTAINED IN THE MASH-UP TOOL OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE MASH-UP TOOL OR THE SERVERS THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
CBSI AND ITS INDEPENDENT CONTRACTORS DO NOT WARRANT OR REPRESENT THAT YOUR ACTIVITIES OR USE OF THE MASH-UP TOOL IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, SPECIFICALLY DISCLAIMS SUCH WARRANTIES. YOU UNDERSTAND THAT BY USING ANY OF THE MASH-UP TOOL, YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE MASH-UP TOOL. FURTHER, CBSI, ITS INDEPENDENT CONTRACTORS AND THEIR SUBSIDIARIES AND AFFILIATES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO THIS AGREEMENT.
6. Limitation of Liability.
NEITHER CBSI NOR ITS INDEPENDENT CONTRACTORS AND THEIR PARENTS, SUBSIDIARIES OR AFFILIATES WILL BE LIABLE FOR THE USE OF THE MASH-UP TOOL OR ANY DAMAGE TO ANY USER'S COMPUTER, INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION.
UNDER NO CIRCUMSTANCES WILL CBSI ITS INDEPENDENT CONTRACTORS OR THEIR PARENTS, SUBSIDIARIES OR AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, ECONOMIC, PUNITIVE OR CONSEQUENTIAL DAMAGES (WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, OR THE PERFORMANCE OF, THE MASH-UP TOOL, THE CBS INTERACTIVE SITES OR YOUR CLIENT VIEWER OR ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY CBSI OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF A MASH-UP SELECTION, THE CBS INTERACTIVE SITES OR YOUR CLIENT VIEWER, EVEN IF FORESEEABLE OR CBSI OR ITS INDEPENDENT CONTRACTORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL CBSI'S AND/OR ITS INDEPENDENT CONTRACTORS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED TEN DOLLARS ($10).
You agree to defend, indemnify and hold harmless CBSI and its independent contractors and their parents, subsidiaries and affiliates with respect to any and all costs, claims, demands, investigations, liabilities, losses, damages, judgments, settlements, costs and expenses, including attorneys' fees arising out of or in connection with this your breach of this Agreement, including, without limitation, your use of the Mash-Up Tool, the CBS Interactive Sites and/or your Client Viewer. Notwithstanding the foregoing, CBSI retains the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of actions which are brought against CBSI and its independent contractors under the terms and provisions of this Section 7 and in no event will you settle any claim without CBSI's prior written approval.
8. Governing Law; Jurisdiction and Venue.
THIS AGREEMENT AND THE INTERPRETATION OF ITS TERMS WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAWS RULES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.
The parties waive all rights to trial by jury in any action or proceeding instituted in connection with this EULA, including, without limitation, the Mash-Up Tool. Any controversy or claim arising out of or relating to this EULA and/or the Mash-Up Tool shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in the State of New York, in the City of New York, County of New York. Any cause of action filed by you with respect to this EULA or use of the Mash-Up Tool must be filed within ninety (90) days after the occurrence of the facts giving rise to the cause of action, otherwise the cause will be forever barred.
You and CBSI further agree that to the extent that either party, has in any way infringed or violated the other party's intellectual property rights, including but not limited to, patent, copyright, trademark, right of privacy or publicity or trade secret rights and/or brings an action for defamation, arbitration is not an adequate remedy at law and other appropriate relief may be sought (subject to the applicable waivers, releases, indemnities and other obligations and agreements set forth herein)
10. Governing Law; Jurisdiction and Venue
THIS EULA AND THE INTERPRETATION OF ITS TERMS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICTS OF LAWS RULES. For any matters which are not subject to arbitration as set forth in this EULA in connection with the entering of any judgment on an arbitration award in connection with this EULA and/or the Mash-Up Tool, the parties irrevocably submit and consent to the exclusive jurisdiction and venue of the New York state and federal courts located in the City of New York, County of New York, and State of New York. The parties agree not to raise the defense of forum non conveniens.
You understand and agree that CBSI may modify, suspend or discontinue the availability of the Mash-Up Tool. CBSI may also impose limits on certain features and services or restrict or deny your access to parts or all of the Mash-Up Tool in its sole discretion without notice or liability of any kind. You understand and agree that CBSI will determine your compliance with this EULA in its sole discretion. CBSI reserves the right to terminate this EULA (and the license contained in this EULA) at any time in its sole discretion without notice or liability of any kind. Any violation of this EULA may be referred to law enforcement authorities.
You agree to comply with all rules, laws and regulations that are applicable to your use of the Mash-Up Tool, including, without limitation, those governing your transmission or use of any software or data. This EULA contains the sole and entire agreement between the parties with respect to the use of the Mash-Up Tool and supersedes any and all other prior or contemporaneous written or oral agreements between them. Captions contained in this EULA are inserted only as a matter of convenience or for reference and in no way define, limit, extend, or describe the scope of this EULA or the intent of any provision of this EULA. No waiver of any of the terms in this EULA will be of any force or effect unless made in writing and signed by a duly authorized officer of CBSI. It is the intent of the parties to this EULA that neither this EULA, nor any covenant in this EULA, will be construed against either party pursuant to the common law rule of construction against the drafter. It is the intent of the parties to this EULA that said rule not be applicable to this EULA. You may not assign or transfer any of the rights or obligations that arise under this EULA to any third party without the prior written consent of CBSI. If any provision of this EULA will be held invalid or unenforceable by any court of competent jurisdiction or as a result of future legislative action, such holding or action will be strictly construed and will not affect the validity or effect of any other provision of this EULA.