This Provider Service Agreement (the “Service Agreement”) sets for the Contract Terms, and is governed by and incorporates by reference hereto, the Master Content Provider Agreement between the Company and the Provider. Any capitalized term used but not defined herein shall have the meaning ascribed to it in the Master Content Provider Agreement.
2. Website Access. VuMee hereby grants you permission to use the Website as set forth in the Provider Agreement, provided that: (i) your use of the Website as permitted is solely for your personal use; (ii) you will not copy or distribute any part of the Website in any medium without VuMee’s prior written authorization; (iii) you will not alter or modify any part of the Website other than as may be reasonably necessary to use the Website for its intended purpose; and (iv) you will otherwise comply with the terms and conditions of these Contract Terms, the Provider Agreement and the Terms of Service and any restrictions or conditions set forth on the Website itself.
3. Content Provision; License; Marketing. During the term of the Provider Agreement between the Provider and the Company, Provider agrees to actively and regularly use the Provider Channels on the Site as part of Provider’s marketing and promotion activities. The Company shall have the right to promote Provider’s use of the Site throughout the Term of the Provider Agreement and may use (and authorize the use of) Provider’s name, photographs, trademarks, approved likeness and biographical information in connection with such promotional activities.
4. Advertising. The Company shall have the right to integrate advertising into the Provider Channels and Content in connection with the Site, and the Company shall control all advertising and sponsorship opportunities on or in connection with the Site (which may include third party advertisements as well as advertisements related to the Site). The Company shall determine all specifications for any such advertising campaign, including creative, impression requirements and fees. Provider shall have no right to independently sell, market or promote paid third party ads or sponsorships in connection with the Provider Channels or Content on the Site (without the involvement of and written approval by the Company), and shall notify the Company of any such opportunities that may arise, so that the parties may mutually determine the best method for leveraging such opportunities in connection with the Site.
5. Content A. The VuMee Website permits the submission of Content by you and you hereby consent and allow for the hosting, sharing, and/or publishing of your Content by VuMee and certain third parties. You understand that whether or not such Content is published, VuMee does not guarantee any confidentiality with respect to any such Content.
B. You shall be solely responsible for your own Content and the consequences of posting or publishing them. In connection with your Content, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize VuMee to use all patent, trademark, trade secret, copyright or other intellectual property or proprietary rights in and to any and all such Content to enable inclusion, use and review of the Content in the manner contemplated by the Website and these Contract Terms, the Provider Agreement and the Terms of Service; (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in such Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of such Content in the manner contemplated by the Website and these Contract Terms, the Provider Agreement and the Terms of Service; and (iii) Provider has the absolute and unrestricted right, power, authority, and capacity to execute and deliver the Provider Agreement and all documents required to be executed and delivered by them hereunder, and to perform all of his/her/its obligations hereunder, and the Provider’s use of the Site and execution of the Provider Agreement will not be a violation or default under any other agreement by which the Provider is bound. For clarity, you retain all of your ownership rights in the Content that you submit through the Website other than the license rights and any other rights granted herein. However, by entering into the Provider Agreement with VuMee and submitting the Content to VuMee, you hereby grant VuMee a perpetual, irrevocable, worldwide, exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and use the Content in connection with the VuMee Website and VuMee’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the VuMee Website (and derivative works thereof) in any media formats and through any media channels.
C. In connection with Content, 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 VuMee all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage VuMee 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. VuMee does not endorse any Content or any opinion, recommendation, or advice expressed therein, and VuMee expressly disclaims any and all liability in connection with Content. VuMee does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and VuMee will remove all applicable Content if properly notified that such Content infringe upon another’s intellectual property rights. VuMee reserves the right, in their sole and absolute discretion, without prior notice, to remove Content at any time and for any reason. VuMee also reserves the right to decide whether Content is appropriate and complies with these Contract Terms, the Master Provider Agreement and the 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. VuMee may remove such Content and/or terminate your access for uploading such material in violation of these Contract Terms and the Provider Agreement and 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 Content 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. VuMee’s designated Copyright Agent to receive notifications of claimed infringement is: Stacie Kristen Daley (Kristen@VuMee.com). 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 VuMee at the contact address located on the WebSite. 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. The Company may edit or remove content that it deems to be in violation of the Contract Terms or the Provider Agreement or the Terms of Service, or that it otherwise deems unlawful, harmful or offensive. The Provider’s Content shall not be used for any unlawful activities or in connection with any criminal or civil violation. Use of the Content for transmission, distribution, retrieval, or storage of any information, data or other material in violation of any applicable law or regulation (including, where applicable, any tariff or treaty) is prohibited. This includes, without limitation, the use or transmission of any data or material protected by copyright, trademark, trade secret, patent or other intellectual property right without proper authorization and the transmission of any material that constitutes an illegal threat, violates export control laws, or is obscene, defamatory or otherwise unlawful; inappropriate and/or offensive communications.
If the Provider engages in conduct that violates the Provider Agreement, or is otherwise illegal or improper, the Company reserves the right to suspend and/or terminate the Service or the Provider’s access to the Site. The Company may attempt to notify you of any activity in violation of the Provider Agreement and request that the Provider cease such activity; however, in cases where the operation of the Site or the Company is threatened or cases involving unsolicited commercial email/SPAM, mail relaying, alteration of your source IP address information, denial of service attacks, illegal activities, harassment or copyright infringement, the Company reserves the right to suspend or terminate the Provider Channel or the Provider’s access to the Site and Service without notification. In addition, the Company may take any other appropriate action against a Provider for violations of the Provider Agreement. The Company does not make any promise, nor do we have any obligation, to monitor or police activity occurring using the Service and will have no liability to any party, including you, for any violation of the Provider Agreement. The Company will cooperate with appropriate law enforcement agencies and other parties involved in investigating claims of illegal or inappropriate activity. The Company reserves the right to disclose Provider information to the extent authorized by federal or state law. In those instances involving child pornography, the Company complies with all applicable federal and state laws including providing notice to the National Center for the Missing and Exploited Children or other designated agencies. The Company reserves the right to modify this the Terms of Service or the Contract Terms at any time without notice. The Company will attempt to the Providers of any such modifications either via e-mail or by posting a revised version of the Terms of Service or the Contracts Terms on the Site. A Provider may not use the Site or Services to engage in any activities that may interfere with the ability of others to access or use the Site or Services or the Internet.
6. Limitation on Liability. IN NO EVENT SHALL THE COMPANY BE LIABLE TO THE PROVIDER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THE PROVIDER AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER THE PROVIDER AGREEMENT. THE COMPANY’S LIABILITY IS LIMITED IN THE AGGREGATE TO THE PROVIDER CHANNEL NET REVENUES.
7. Disclaimer of Warranties. EXCEPT AS OTHERWISE SPECIFIED IN THE PROVIDER AGREEMENT, THE COMPANY PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THE PROVIDER AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY THE COMPANY, AND (B) THE COMPANY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THE PROVIDER AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THE PROVIDER AGREEMENT. IF ANY PROVISION OF THE PROVIDER AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THE PROVIDER AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
8. Indemnification. The Provider agrees to protect, defend, hold harmless and to indemnify the Company, its officers, directors, employees, attorneys and agents (collectively, the “Indemnitees”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever incurred by the Indemnitees, whether direct, indirect or consequential, as a result of or arising from or relating to any proceeding by any person, whether threatened or initiated, asserting any claim for legal or equitable remedy against any person under any statute or regulation (including, without limitation, any federal, state or provincial securities or commercial laws) or under any common law or equitable cause or otherwise, in any way arising from or in connection with the negotiation, preparation, execution, delivery, enforcement, performance and administration of the Provider Agreement, which includes but is not limited to claims of third party people that have not granted permission for use of their likeness or images in the Provider provided Content.
9. Confidentiality. a. “Confidential Information” means: (i) any information disclosed by either Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, know how, ideas, inventions, marketing plans, processes, products, research, specifications, software, source code, trade secrets, benchmarking reports and its contents or any other information which is designated as “confidential,” “proprietary” or some similar designation or should reasonably be understood by the receiving Party as being confidential; and (ii) any information otherwise obtained, directly or indirectly, by a receiving Party through inspection, review or analysis of the foregoing Content. Information that is disclosed orally shall be Confidential Information if it is designated as such at the time of disclosure. Confidential Information shall also include confidential, proprietary and/or non-public information of a third party that is in the possession of one of the Parties and is disclosed to the other Party under the Provider Agreement. Confidential Information shall not include any information which (i) is or becomes generally available to the public without breach of the Provider Agreement; (ii) is rightfully in the possession of a Party prior to its disclosure by the other Party; (iii) becomes available from a third party not in breach of any obligations of confidentiality to the disclosing party; or (iv) is required to be disclosed pursuant to a duly authorized subpoena, court order, or government authority, whereupon the Party subject to same shall provide prompt written notice to the other Party prior to such disclosure, so that such Party may seek a protective order or other appropriate remedy.
b. Both Parties agree to: (i) hold the Confidential Information of the other Party in the strictest confidence; (ii) not disclose the Confidential Information of the other Party to others, except in performing their obligations under the Provider Agreement; (iii) not use the Confidential Information of the other Party in any way, commercially or otherwise, except in performing their obligations under the Provider Agreement; and (iv) not allow any unauthorized person to gain access to the Confidential Information of the other Party, either before or after expiration or termination of the Provider Agreement. Each Party further agrees to take all action reasonably necessary and satisfactory to protect the confidentiality of the Confidential Information of the other Party, including, without limitation, implementing and enforcing operating procedures to minimize the possibility of unauthorized use or copying of the Confidential Information.
c. The Parties agree that any breach or threatened breach of this section may cause irreparable injury to the non-breaching Party, and accordingly, the non-breaching Party shall be entitled to seek injunctive or other equitable relief without a showing of monetary damages or posting of bond, in addition to any and all legal remedies that may be available.
10. Severability. Whenever possible, each provision of the Provider Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of the Provider Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any action in any other jurisdiction, but the Provider Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
11. Choice of Law. ALL ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THE PROVIDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF FLORIDA. THE PARTIES AGREE THAT ALL DISPUTES, LEGAL ACTIONS, SUITS AND PROCEEDINGS ARISING OUT OF OR RELATING TO THE PROVIDER AGREEMENT MUST BE BROUGHT EXCLUSIVELY IN THE FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA OR THE FLORIDA STATE COURT LOCATED IN BROWARD COUNTY, FLORIDA (COLLECTIVELY THE DESIGNATED COURTS). EACH PARTY HEREBY CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE DESIGNATED COURTS. NO LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO THE PROVIDER AGREEMENT MAY BE BROUGHT IN ANY OTHER FORUM. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL CLAIMS OF IMMUNITY FROM JURISDICTION AND ANY RIGHT TO OBJECT ON THE BASIS THAT ANY DISPUTE, ACTION, SUIT OR PROCEEDING BROUGHT IN THE DESIGNATED COURTS HAS BEEN BROUGHT IN AN IMPROPER OR INCONVENIENT FORUM OR VENUE.
12. Amendment and Waiver. The provisions of the Provider Agreement may be amended or waived only with the prior written consent of the parties, and no course of conduct or course of dealing or failure or delay by any party hereto in enforcing or exercising any of the provisions of the Provider Agreement shall affect the validity, binding effect or enforceability of the Provider Agreement or be deemed to be an implied waiver of any provision of the Provider Agreement.
13. Attorney’s Fees. If any legal action is brought by either party to enforce its rights under the Provider Agreement, the non-prevailing party in such action shall reimburse the prevailing party all of such prevailing party’s costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such action.
14. Notices: All notices under the Provider Agreement shall be in writing, and shall be deemed given: (i) when delivered personally; (ii) when sent by confirmed electronic mail or facsimile transmission; (iii) five days after having been sent by registered or certified mail, return receipt requested; or (iv) one day after deposit with a commercial overnight carrier, with written verification of receipt. All communications to the Company will be sent to the addresses set forth below or such other address as a party gives to the other by notice in accordance with this section, and all communications to the Provider will be sent to the address sent on the Master Content Provider Agreement.
If to the Company:
50 E. Sample Road
Pompano Beach, Florida 33064
Attn: Legal Dept
15. Miscellaneous. Except in confidence to its legal and financial advisors, Provider shall not disclose the terms of the Provider Agreement to any third party without the Company’s prior written consent. For all purposes of the Provider Agreement, each party shall be and act as an independent contractor and not as partner, joint venture, or agent of the other and shall not bind nor attempt to bind the other to any contract. All notices under the Provider Agreement shall be in writing, and shall be deemed given when personally delivered, when sent by confirmed fax, or three (3) days after being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set forth herein or such other address as such party last provided to the other by written notice. Provider shall not have any right or ability to assign, transfer, or sublicense any obligations or benefit under the Provider Agreement without the written consent of the Company (and any such attempt shall be void).