Terms Of Service
Last updated on January 13, 2009
This is an agreement between KickLight, a project of SRI International ("KickLight") and You. What we will refer to as the "Agreement" includes this "KickLight Terms of Service" document and also any policies, guidelines, and amendments that may be incorporated into this document or presented to You from time to time. This Agreement describes the terms and conditions on which KickLight offers You participation in KickLight's video distribution program, KickLight’s supplemental, synchronized content creation and distribution program, KickLight’s advertising program, and related KickLight services as further described below (the "KickLight Partner Program"). "You" and "Your," as applicable, means the person or entity identified in the registration form submitted.
PLEASE READ THIS AGREEMENT CAREFULLY. This Agreement sets forth the legally binding terms and conditions for Your participation in the KickLight Partner Program. By using and/or visiting this website (collectively, including all content and functionality available through the KickLight.com domain name or related domain names, the "KickLight Site" or “Site”), you signify your agreement to these terms and conditions, to KickLight's privacy notice, found at http://www.kicklight.com/privacy and incorporated here by reference, and to KickLight's Community Guidelines, found at http://www.kicklight.com/community_guidelines and also incorporated here by reference. Your use of the KickLight Website following any amendment of this Agreement will signify your assent to and acceptance of its revised terms.
By registering, clicking "I Agree," or otherwise participating in the KickLight Partner Program, You represent to KickLight that You are at least 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with the terms of service set forth in this Agreement. In any case, you affirm that you are over the age of 13, as the KickLight Website is not intended for children under 13. If you are under 13 years of age, then please do not use the KickLight Website. There are lots of other great web sites for you. Talk to your parents about what sites are appropriate for you.
If You register on behalf of a business, You represent to KickLight that You have the authority to bind that business and Your acceptance of this Agreement will be treated as acceptance by that business. In that event, "You" and "Your" will refer to that business in this Agreement. If You do not accept this Agreement in full please do not use the KickLight Site, please do not register for or participate in the KickLight Partner Program.
The KickLight Site may contain links to third party websites that are not owned or controlled by KickLight. KickLight has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, KickLight will not and cannot censor or edit the content of any third-party site. By using the Site, you expressly relieve KickLight from any and all liability arising from your use of any third-party website. Accordingly, we encourage you to be aware when you leave the KickLight Site and to read the terms and conditions and privacy policy of each other website that you visit. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
With this in mind, You agree to and acknowledge the following:
- The KickLight Network
KickLight has or may develop and maintain a network of video content creators, supplemental content creators (i.e., creators of “Kicks” and “kicklights”), and advertisers. KickLight may also offer related technologies that facilitate the distribution of video content from participating content creators and that provide links to advertising content from participating advertising partners. This network and technology are referred to after this as the "KickLight Network." KickLight makes or may make the KickLight Network available to the public through one or more channels. These channels may include but are not limited to the following:- Online, via the KickLight Site and/or via websites, software applications, plug-ins, blogs, media search engines, toolbars, games, components or downloadable code, and other viral online mediums such as peer-to-peer networks, file sharing, instant messaging and email of KickLight and KickLight's distribution partners ("Online Distribution");
- Broadcast, via cable, satellite and digital television, video, laser disc, DVD, CD-Rom and motion picture distribution, whether over-the-air, wireless or in the foregoing hard-copy media ("Broadcast Distribution"); and
- Distribution via mobile phones and other handheld devices ("Mobile Distribution").
- The KickLight Partner Program
The KickLight Network, the KickLight Site, the KickLight Syndication Network and related products and services are together referred to after this as the "KickLight Products". The KickLight Partner Program permits You to participate in, use and/or obtain access to the KickLight Products in a variety of ways. These include but are not limited to the following:- Participation as a content creator, by creating and submitting video content are supplemental content (“Kicks” and “kicklights”) for distribution in the KickLight Syndication Network (“User”).
- Participation as an advertising sponsor, by creating and submitting or otherwise authorizing the use of advertising content for distribution in the KickLight Syndication Network (“Sponsor”).
- Participation as a distribution partner, by distributing or displaying video content, Kicks, forms of advertising, and other products and services in the KickLight Syndication Network (“Syndicator”).
- Participation as a member of KickLight, by submitting reviews, communicating with other KickLight Partner Program members and sharing or submitting other information ("Community Member").
- Access to online management services relating to Your websites, video content and advertising campaigns ("Management Services").
- Access to certain KickLight applications, software, and related services, such as access to KickLight's API or Quick Kick creation tools ("Applications").
- Access to trial or beta features, products, and services ("Trial Features").
- Registration
To Participate, You must register online with KickLight at the KickLight Site, or through the websites of a KickLight third party affiliate or partner, and create a unique, password-protected account ("Account"). You will be responsible for safeguarding Your password. You also take full responsibility for any actions under Your password and Account, whether authorized by You or not. You are responsible for keeping Your Account information current. You acknowledge and agree that KickLight will have no responsibility or liability, directly or indirectly, for: (i) the availability of the external websites or resources of such third party affiliates or partners; (ii) the acts or omissions of, or any damage or loss caused or alleged to be caused by or in connection with Your use of or reliance on, such third party affiliates or partners, regarding Your Account; or (iii) failure to deliver notices or payments that result from inaccurate Account information. - Policies
Your Participation is subject to all applicable KickLight specification guidelines, requirements and policies which KickLight may provide from time to time. These include but are not limited to the Copyright Policy (http://www.kicklight.com/copyright), the Privacy Policy (http://www.kicklight.com/privacy) and any specification guidelines (together, the "Policies"). You agree to comply with the Policies to enable, as applicable, proper delivery, display, tracking and reporting of actions related to the KickLight Partner Program. - Modifications
KickLight, at any time and from time to time, may modify this Agreement and the Policies, or may modify, suspend or discontinue, temporarily or permanently, the KickLight Products or the KickLight Partner Program (or any parts thereof). Modifications to this Agreement and Policies will be posted on the KickLight Site or made in compliance with any notice requirements set forth in this Agreement. Modifications to the KickLight Products or the KickLight Partner Program will be effective upon posting to the KickLight Site. You agree that KickLight shall not be liable to You or to any third party for any modification, suspension or discontinuance of this Agreement, the Policies, the KickLight Products or the KickLight Partner Program. By continuing to Participate after KickLight has posted any such modifications or provided any required notices, You agree to be bound by the modifications. Please review this Agreement and the Policies regularly so that You will be apprised of any modifications. If any modification is not acceptable to You, Your only recourse is to cease Participation. - Participation
At the time of registration, You will be given the opportunity to select one or more features of the KickLight Partner Program in which You wish to Participate (for example, as an User or a Community Member). To remain eligible for Participation, You must at all times comply with the terms and conditions of this Agreement and all Policies. KickLight reserves the right to refuse Participation to any applicant or participant at any time in its sole discretion.-
Users.
If You Participate as an User, You are solely responsible for all content You transmit or submit to KickLight or
through the KickLight Partner Program, whether created by or for You, including but not limited to Kicks, graphics, music, sound, images,
files, photos, animation, artwork, text, data, information, messages, hypertext links, scripts or other material (collectively, "User Content").
KickLight disclaims all liability relating to Your User Content. As more fully set forth below (see, Representations and Warranties), You may
not submit User Content that contains any pornographic, infringing, hate-related, violent, or illegal content.
In connection with KickLight's marketing, distribution and provision of the KickLight Partner Program as contemplated herein, You permit KickLight, as further described below, to:- host, index and cache Your User Content;
- tag Your User Content with information (metadata) that will be used by KickLight to identity it as Your User Content and assist KickLight in properly tracking and calculating any revenue amounts that You may earn;
- tag Your User Content with information (metadata) that will be used by KickLight or a third party to associate supplemental content such as banner ads;
- associate using KickLight's ad insertion or matching software or service ("Ad Insertion Service") with Your User Content to enable KickLight, if applicable and in KickLight's discretion, to deliver Ads (as defined below) with or in coordination with Your User Content or metadata relating to Your User Content;
- distribute, or have distributed, Your User Content in the KickLight Syndication Network; and
- engage in such further actions regarding Your User Content as may be necessary or appropriate in order to effect the purposes of the KickLight Partner Program.
KickLight may, in its sole discretion:- reject, suspend access to or remove any of Your User Content from the KickLight Network at any time that KickLight deems it unsuitable for the KickLight Network or for distribution in the KickLight Syndication Network; and
- modify any metadata You submit with Your User Content, including without limitation meta tags, age rating, descriptive language, search terms, category and keyword modifiers. KickLight shall have no liability for taking such actions. You agree and accept that KickLight does not guarantee that Your User Content will be distributed on any part of the KickLight Syndication Network and that distribution may be subject to acceptance by any of the Third Party Service Providers.
- any of Your User Content that is otherwise publicly available through the Internet or other publicly accessible medium; or
- any of Your User Content that is distributed by Syndicators in the KickLight Syndication Network or their end users without monetary compensation or commercial purposes as set forth below (see, Users: Your Irrevocable Non-Commercial Distribution License).
You further agree that you will not, in connection with User Content, submit material that is contrary to the KickLight Community Guidelines, found at http://www.kicklight.com/t/community_guidelines, which may be updated from time to time, or contrary to applicable local, national, and international laws and regulations. - Sponsors. If You Participate as a Sponsor, You are solely responsible for all advertising content You transmit or submit to KickLight or through the KickLight Partner Program, whether created by or for You, including but not limited to: (i) artwork, written content, images, photos, graphics, music, animation, data, text, information, URLs, hypertext links, scripts and the content and material included in such components; and (ii) websites and content proximately reachable from such content (collectively, "Ads"). Prior to providing any Ads and Participating as a Sponsor, You will be required to read and accept additional written terms and conditions governing Your submission of Ads to KickLight (the "Advertiser Agreement"). KickLight disclaims all liability relating to Your Ads. As more fully set forth below (see, Representations and Warranties), You may not submit Ads that contain any pornographic, infringing, hate-related, violent or illegal content. In connection with KickLight's marketing, distribution and provision of the KickLight Partner Program as contemplated in this Agreement, and in addition to the terms set forth in the Advertiser Agreement, You permit KickLight to: (x) tag Your Ad with information that will be used by KickLight to identity it as Your Ad and assist KickLight in properly tracking and calculating any revenue amounts that You may owe to KickLight; (y) associate or allow others to associate Your Ad with User Content, and (z) distribute, or have distributed, Your Ad in the KickLight Syndication Network via Online Distribution. Your Ad is "associated" with User Content, within the meaning of this Agreement, when, as the result of the operation of KickLight's Ad Insertion Service, Your Ad is visible before, during, or after display of User Content. KickLight may, in its discretion, reject, suspend access to or remove any of Your Ads from the KickLight Network at any time. You agree and accept that distribution of Your Ads on any part of the KickLight Syndication Network may be subject to acceptance by any applicable Third Party Service Providers.
-
Syndicators.
If You Participate as a Syndicator, KickLight offers a selection of syndication tools to let You display and distribute the User Content and Ads and KickLight offers and makes available to You other materials through the KickLight Partner Program for Online Distribution to Your end users, in accordance with any specifications provided or made available to You by KickLight, as follows:
- You may select and display and distribute User Content and Ads in accordance with this Agreement (see, Syndicators: Your Revocable Right to Commercially Distribute KickEnabled User Content and see, Syndicators: Your Right to Distribute Other Materials), provided that You may not modify or alter such User Content and Ads in any way other than as expressly permitted by such Sections; and
- You may download, view, "frame," "mirror" or otherwise copy portions of the KickLight site in accordance with this Agreement (see, Community Members: Your License to KickLight), provided that You may not modify or alter the KickLight site, any KickLight technology, any User Content and Ads or any materials available on the KickLight site in any way other than as expressly permitted by this Agreement.
At the time of registration, You may be given the opportunity to designate the Online Distribution locations (for example, the websites, blogs and peer-to-peer networks) and associated revenue structure (if any) by which means You will distribute User Content and Ads (any such means, collectively, "Syndication Sites"). KickLight disclaims all liability relating to Your Syndication Sites. You are solely responsible for all maintenance and operation of Your Syndication Sites, and any materials or content therein. As more fully set forth below (see, Representations and Warranties), You may not display or distribute User Content and Ads on any Syndication Sites that contain any pornographic, infringing, hate-related, violent or illegal content. You agree to comply with any specifications provided by KickLight to: (i) enable proper use, delivery, display, and distribution of the User Content and Ads on Your Syndication Sites; and (ii) to assist KickLight in properly tracking and calculating any revenue amounts that You may earn. You will use Your good faith efforts to provide KickLight with prior notice when You anticipate that Your Syndication Site end user traffic directed to the KickLight site will increase by twenty-five percent (25%) or more at any given time.
You agree and accept that KickLight, upon request of the applicable Users or in its sole discretion, may add or remove from the KickLight Site any or all User Content available to You at any time. In conjunction with such removal of available User Content, KickLight may remove any Ads associated with such User Content that has been distributed in the KickLight Syndication Network. Your right to receive compensation, if any, for Your continued distribution of such User Content with removed Ads will automatically terminate. In accordance with this Agreement (see, Revenue and Payment Terms), KickLight will make commercially reasonably efforts to pay to You all undisputed, Qualifying Amounts for the removed Ads, if any, due to You within ninety (90) days from the last day of the month in which such request to remove occurs.
You agree that You will not:- modify any specifications, technology or application codes, including without limitation KickLight's Ad Insertion Service, provided to You by KickLight or as embedded in or related to the User Content in any way, unless expressly authorized in writing by KickLight;
- intersperse any content between User Content and its related Ad or between an Ad and the Ad page accessed by an end user after clicking on any part of an Ad (the "Advertiser Page"), or otherwise provide anything other than a direct link from User Content to an Ad or from an Ad to an Advertiser Page;
- disrupt, intercept or redirect an end user away from any Ad links or Advertiser Page or provide a version of the Advertiser Page that is different from the page an end user would access by going directly to the Advertiser Page; or
- frame, minimize, remove or otherwise inhibit the full and complete display of any Advertiser Page.
- Community Members. If You register to Participate, You will automatically become a Community Member. As a Community Member, You may communicate with KickLight and other Account holders, post or publish comments or rating features regarding User Content and Ads, KickLight Products or the KickLight Partner Program in, as may be made available at KickLight's complete discretion, a discussion group, chat area, bulletin board, feedback area, news group, email functionality or other communication feature. All such communications are referred to after this as "Member Comments." You are solely responsible for all Member Comments You transmit or submit to KickLight or through the KickLight Partner Program, whether created by or for You, including but not limited to websites and content proximately reachable from such Member Comments. KickLight disclaims all liability relating to Your Member Comments. As more fully set forth below (see, Representations and Warranties), You may not submit any Member Comments that contain any sexually suggestive, pornographic, infringing, hate-related, violent, or illegal content.
-
General Use of the Website -- Permissions and Restrictions.
KickLight hereby grants you permission to access and use the Website as set forth in these Terms of Service, provided that:
- You agree not to alter or modify any part of the Website, including but not limited to KickLight's Embeddable Player or any of its related technologies.
- You agree not to access User Content or Ads through any technology or means other than the video playback pages of the Website itself, the KickLight embeddable player, or other explicitly authorized means KickLight may designate.
- You agree not to use the Website, including the KickLight embeddable player or metadata pertaining to any User Content for any commercial use, without the prior written authorization of KickLight. Prohibited commercial uses include any of the following actions taken without KickLight's express approval: sale of access to the Website or its related services (such as the KickLight embeddable player) on another website; use of the Website or its related services (such as the embeddable player), for the primary purpose of gaining advertising or subscription revenue, except as enabled through the KickLight’s advertising functionality; the sale of advertising, on the KickLight website or any third-party website, targeted to the content of specific User Content or Ads; and any use of the Website or its related services (such as the Embeddable Player) that KickLight finds, in its sole discretion, to use KickLight's resources or User Submissions with the effect of competing with or displacing the market for KickLight, KickLight content, or its User Submissions.
- You agree not to use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," that accesses the Website in a manner that sends more request messages to the KickLight servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, KickLight grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. KickLight reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information (including account names and data relating to User Kicks and viewer interaction with Kicks) from the Website, nor to use the communication systems provided by the Website (e.g. comments, email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Website with respect to their User Content of Ads.
- Member Comments are made available to you for your information and personal use solely as intended through the normal functionality of the KickLight Partner Program. Member Comments are made available "as is", and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, downloaded, or otherwise exploited in any manner not intended by the normal functionality of the KickLight Partner Program or otherwise as prohibited under this Agreement.
- Applications. Your access to and use of certain Applications and accompanying documentation, including but not limited to KickLight's API or any software made available to You to assist You in uploading Your User Content, will be subject to the terms of separate license agreements between You and KickLight. You will be required to read and indicate Your agreement to such separate terms prior to installing or using such Applications.
- Trial Features. Some Trial Features may be made available on an as-is basis only, which will be marked as such. Your use of the Trial Features is at Your own risk. All information relating to the Trial Features will be treated as "confidential" in accordance with this Agreement (see, Confidential Information).
-
Users.
If You Participate as an User, You are solely responsible for all content You transmit or submit to KickLight or
through the KickLight Partner Program, whether created by or for You, including but not limited to Kicks, graphics, music, sound, images,
files, photos, animation, artwork, text, data, information, messages, hypertext links, scripts or other material (collectively, "User Content").
KickLight disclaims all liability relating to Your User Content. As more fully set forth below (see, Representations and Warranties), You may
not submit User Content that contains any pornographic, infringing, hate-related, violent, or illegal content.
- Participation at Your Own Risk
Your Participation is at Your own risk. Although the KickLight Partner Program enables users to connect and share User Content and Member Comments with one another and with end users or viewers, KickLight has no responsibility to control of monitor any information or exchanges between or among users. KickLight does not control the User Content, Ads, and Member Comments made available through the KickLight Products. Some people may find User Content, Ads, and Member Comments objectionable, inappropriate, or offensive. KickLight does not control or guarantee, nor is KickLight responsible for, the truth, accuracy, ownership, completeness, integrity, safety, timeliness, quality, appropriateness, legality, or applicability of any User Content, Ads, and Member Comments. KickLight does not endorse any User Content or Ad or any opinion, recommendation, or advice expressed therein. KickLight assumes no responsibility for monitoring any User Content, Ads, or Member Comments or conduct during Participation. If KickLight chooses, at any time in its sole discretion, to monitor (in whole or in part) User Content, Ads, Member Comments, or conduct during Participation, KickLight nonetheless assumes no responsibility for User Content, Ads, and Member Comments, no obligation to modify or remove any User Content, Ads, or Member Comments, and no responsibility for conduct during Participation. You agree that KickLight has no responsibility or liability for the deletion or failure to store, maintain, or transmit any User Content, Ads, or Member Comments. - Revenue and Payment Terms
KickLight does not currently offer any revenue or payment programs. Although Users may include in their Kicks links to affiliate programs such as the Associates’ program offered by Amazon.com, KickLight is not involved in such transactions. Although KickLight may provide the User with the ability to add their affiliate code to their Kick URLs, any subsequent interaction is the responsibility solely of the User and the relevant affiliate program. User is solely responsible for ensuring that their use of Kicks is consistent with the terms of the relevant affiliate program. - Privacy Participation is governed by the KickLight Privacy Policy located at http://www.kicklight.com/privacy, which is incorporated into this Agreement by reference. Furthermore, by Participating, You understand that when You (or Your end users if You are a Syndicator) view or interact with KickLight Products and features of the KickLight Partner Program (for example, by clicking on User Content or on an Ad), KickLight may collect (and You may provide to KickLight) information that is specific to how You (or Your end users) access and use the Internet as well as how You (or Your end users) view and/or interact with KickLight Products ("Access Information"). Access Information may include, but is not limited to, an IP address, the website a user is logged onto, the geographic location of the IP address the user is using to access the Internet, the type of browser used, which and how many web pages have been viewed by the user, search terms used, referring/exit pages, platform type and date/time information. This information is anonymous and does not personally identify a user. KickLight uses Access Information for the purpose of monitoring delivery and distribution of the User Content and Ads, improving Ad targeting, delivery and reporting, improving the KickLight Products and the KickLight Partner Program and measuring their effectiveness with users. Access Information may be shared with KickLight's Third Party Services Providers, affiliates, business partners, sponsors, advertisers, employees, customers, and distribution partners.
- Proprietary Rights & Licenses
- KickLight's Ownership Rights. KickLight and its licensors own all right, title and interest, including without limitation all worldwide intellectual property rights in the KickLight Products and the KickLight Partner Program, and all such rights to all derivative works or enhancements of, in and to, or relating to, the KickLight Products and the KickLight Partner Program. By entering into this Agreement or by Your Participation, You will not acquire any intellectual property or similar rights in the KickLight Products, the KickLight Partner Program or related products and services. You agree You will not (i) remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the KickLight Products, the KickLight Partner Program or related products and services; or (ii) use KickLight's name, logo, trademark, trade names or service marks except as expressly permitted in this Agreement without KickLight's prior written consent.
- Your Ownership Rights. Subject to the licenses You are granting in this Agreement, You retain all right, title and interest, including without limitation all worldwide intellectual property rights, in and to Your User Content that is submitted, posted or displayed by You on or through the KickLight Products and KickLight Partner Program. KickLight shall not acquire any right, title or interest in or to such User Content, except as provided herein. Any rights not granted by You herein are deemed retained by You. As more fully described below (see, Term and Termination), You have the right to terminate this Agreement and revoke certain licenses You are granting in this Agreement, with respect to all User Content You provide or with respect to particular works You provide. If You choose to revoke any of Your revocable licenses, KickLight will use commercially reasonable efforts to remove Your User Content from the KickLight Site reasonably promptly upon receipt of Your notice of revocation and will make reasonable efforts to notify authorized Syndicators (i.e., those distributing Your User Content with Ads) for whom it has current and up-to-date information. You acknowledge that You are aware that KickLight has limited practical ability to control or monitor possible infringement of Your intellectual property rights by other parties and that KickLight assumes no responsibility for controlling or monitoring such intellectual property rights. In addition, KickLight is not responsible for enforcing Your intellectual property or for suing or taking other legal action against infringers or against Syndicators who fail to cease using Your User Content upon revocation. You or a third party licensor, as appropriate, are responsible for protecting Your intellectual property rights. KickLight may, at its discretion, choose to assist You in connection with protecting or enforcing Your intellectual property rights in a particular instance; in such event, this does not mean that KickLight has an obligation to do so in any other instance and this does not mean that KickLight has an obligation to effectively protect or enforce Your intellectual property rights.
- KickLight's Trademark License to You. During the term of this Agreement, and subject to Your compliance with the terms and conditions of this Agreement, You will have the right to use the trade names, trademarks, logos, and designations in or associated with the KickLight Network ("KickLight Marks") solely for purposes of identifying KickLight and solely in connection with Your permitted activities under this Agreement. You agree that the KickLight Marks and all associated goodwill are and will remain the sole property of KickLight, that any goodwill generated as a result of Your licensed use of KickLight Marks belongs exclusively to KickLight and inures solely to the benefit of KickLight, and that Your use of KickLight Marks is subject to KickLight's control of the quality of any products or services with respect to which You may be authorized to use KickLight Marks.
- Users: Your Revocable Limited License to KickLight. In connection with Your Participation as an User, and solely insofar as such supplemental distribution channels (i.e., Broadcast Distribution and/or Mobile Distribution) are made available to and selected by You, in order to allow KickLight to distribute Your User Content in the KickLight Syndication Network through Broadcast Distribution and/or Mobile Distribution as selected by You, You hereby grant (or warrant that the owner of such rights has expressly granted) to KickLight a worldwide, revocable, non-exclusive, sublicensable, limited right and license to use, reproduce, modify and adapt (solely to permit KickLight to conform and adapt Your User Content to technical requirements, including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies), excerpt, publish, transmit, publicly perform, display, reference, store, host, index and cache, in any form, medium or technology now known or later developed, any User Content, Member Comments or materials You submit to KickLight, in whole or in part, whether created by or for You, by any method, and in any and all media, whether currently existing or hereafter developed. You understand that Your revocable limited license to KickLight includes Your grant to KickLight of the right to create, display, and distribute (as set forth more fully in the previous sentence) a derivative work based on Your User Content, which derivative work is comprised solely of Your User Content as adapted to include KickLight's computer software, including KickLight's Ad Insertion Service, whose functions are to enable Ads to be associated with Your User Content, to identity Your submission as Your User Content, to assist KickLight in properly tracking and calculating any revenue amounts that You or Syndicators may earn, and to effect related functions. (After this we refer to the aforementioned derivative work as "Your KickEnabled User Content.") KickLight's rights, with respect to Your KickEnabled User Content, are limited to its rights set forth in this Agreement, and KickLight expressly waives and disclaims, with respect to You, any other rights it might otherwise hold to Your KickEnabled User Content under copyright law. As more fully described below (see, Term and Termination), this license will terminate: (i) with respect to any User Content that You have requested be removed in accordance with this Agreement (see, Participation (Users)); and (ii) upon termination of the Agreement (see, Term and Termination).
- Users: Your Revocable Online Commercial Distribution License. In connection with Your Participation as an User, in order to allow KickLight and others to distribute Your KickEnabled User Content in the KickLight Syndication Network through Online Distribution, You hereby grant (or warrant that the owner of such rights has expressly granted) to KickLight, Third Party Service Providers and Syndicators a limited, revocable right to use, reproduce, publicly perform, distribute and display Your KickEnabled User Content for monetary compensation or commercial purposes in the KickLight Syndication Network as contemplated by this Agreement and to engage in such further actions relating to and in connection with Your User Content as may be necessary or appropriate in order to effect the purposes of the KickLight Syndication Network.
- Users: Your Irrevocable Non-Commercial Distribution License. In connection with Your Participation as an User, You hereby grant (or warrant that the owner of such rights has expressly granted) to any persons or entities who want to use Your KickEnabled User Content in a manner not intended for commercial advantage or private monetary compensation, a right to use, reproduce, publicly perform, distribute and display Your KickEnabled User Content for non-commercial purposes pursuant to the terms and conditions of the Creative Commons "Attribution-NonCommercial-NoDerivs 2.5" license located at http://creativecommons.org/licenses/by-nc-nd/2.5/legalcode (the "Creative Commons BY-NC-ND License"). Insofar as KickLight holds any rights to Your KickEnabled User Content pursuant to this Agreement, KickLight also grants the rights stated in this paragraph to such persons or entities pursuant to the Creative Commons BY-NC-ND License.
- Users: Your Revocable Broadcast and Mobile Distribution License. In connection with Your Participation as an User, in order to allow KickLight to distribute Your User Content in the KickLight Syndication Network through Broadcast Distribution and Mobile Distribution, solely insofar as such distribution is made available to and selected by You, You hereby grant (or warrant that the owner of such rights has expressly granted) to KickLight a worldwide, revocable, royalty-free, non-exclusive sublicensable right and license to: (i) use, reproduce, modify and adapt (solely to conform and adapt to technical requirements, including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies), reference, store, host, index and cache, and (ii) excerpt, publish, transmit, distribute, publicly perform, display in the KickLight Syndication Network through Broadcast Distribution and Mobile Distribution, in any form, medium or technology now known or later developed, Your User Content or materials You submit to KickLight, in whole or in part, whether created by or for You, by any method, and in any and all media, whether currently existing or hereafter developed, in connection with KickLight's marketing, distribution and provision of the KickLight Products and KickLight Partner Program. This license gives KickLight the right to display and distribute, or have displayed and distributed, Your User Content via Broadcast Distribution and Mobile Distribution for no fee to the end user. KickLight reserves the right to display Ads in connection with any Broadcast Distribution and Mobile Distribution of Your User Content.
- Sponsors: Your License to KickLight. The licenses relating to the use and distribution of Your Ads will be set forth in any Advertiser Agreement between You and KickLight.
- Syndicators: Your Revocable Right to Commercially Distribute KickEnabled User Content. Subject to Your compliance with the terms and conditions of this Agreement, You have a limited, revocable, non-sublicensable right to use, reproduce, publicly perform, distribute and display for commercial purposes, solely via Online Distribution in the KickLight Syndication Network as contemplated by this Agreement, KickEnabled User Content made available to You by KickLight, and to engage in such further actions relating to and in connection with such KickEnabled User Content as may be necessary or appropriate in order to effect the purposes of the KickLight Syndication Network. Upon termination of this Agreement or any individual KickEnabled User Content right granted hereunder, by KickLight, an User or a Sponsor, Your rights to use and distribute such KickEnabled User Content for commercial purposes will immediately cease; however, Your rights to use, reproduce, publicly perform, distribute and display KickEnabled User Content for non-commercial purposes and without monetary compensation pursuant to the terms and conditions of the Creative Commons BY-NC-ND License will continue, so long as You adhere to the terms and conditions of the Creative Commons BY-NC-ND License. You may not display or distribute User Content or Ads via Broadcast Distribution or Mobile Distribution unless You have first obtained KickLight's express prior written approval to do so under a separate written agreement executed by both You and KickLight.
- Syndicators: Your Right to Distribute Other Materials. Subject to Your compliance with the terms and conditions of this Agreement, KickLight hereby grants You the right to use and distribute via Online Distribution certain KickLight content, KickLight Site content and other materials, insofar as such materials are made available to You by KickLight during the term of this Agreement, and to "frame," "mirror" or otherwise copy portions of the KickLight Site and KickLight content as may be made available to You by KickLight. KickLight reserves the right, in its sole and absolute discretion, to revoke the license set forth in this Agreement at any time, effective immediately upon notice to You.
- Community Members: Your License to KickLight. In connection with Your Participation as a Community Member, by uploading, submitting, emailing, posting, publishing or otherwise transmitting any Member Comments, You hereby grant (or warrant that the owner of such rights has expressly granted) KickLight a worldwide, royalty-free, non-exclusive, sublicensable, perpetual, and irrevocable right and license to use, reproduce, modify, adapt, create derivative works of, perform, display, distribute, publish and transmit such Member Comments in any form, medium or technology now known or later developed. You warrant that any Member Comments You submit do not infringe upon any rights, including intellectual property rights, of any other parties. In addition, You warrant that all so-called moral rights in the Member Comments have been waived.
- Your Information. You authorize KickLight to use, as applicable to Your Participation, Your trademarks, service marks, trade names, proprietary logos, domain names, Syndication Site usage statistics and any other source or business identifiers (collectively, "Your Information") in presentations, as a feature on the KickLight Site, marketing materials, customer lists and financial reports, in connection with KickLight's marketing, distribution, and provision of the KickLight Products and KickLight Partner Program. You also grant KickLight a non-exclusive license to index and cache Your Information and any portion thereof, by manual or automated means (including with web spiders and crawlers), for purposes of promoting, providing and improving the KickLight Products and the KickLight Partner Program and for soliciting other distributors, publishers, creators and advertisers to use the KickLight Products and Participate. You acknowledge and agree: (i) that You understand that You may provide, and KickLight may collect, Your Information during Your Participation; and (ii) that Your Information may be shared with KickLight's affiliates, business partners, sponsors, advertisers, employees, customers, and distribution partners.
- No Endorsement; No Publicity. KickLight does not endorse, verify, evaluate, or guarantee any information or User Content or Ads provided by users, including You, and nothing shall be considered as an endorsement, verification or guarantee of any information or User Content or Ads. You shall not create or distribute information, including but not limited to advertisements, press releases or other marketing materials, or include links to any sites which offer such information, (i) containing or suggesting an endorsement by KickLight of You or Your User Content or Ads; or (ii) relating to this Agreement, without the prior review and written approval of KickLight. Notwithstanding the foregoing, You may accurately disclose and describe Your Participation and Your User Content (for example, describing and promoting Your User Content on Your blog or in emails).
- Reserved Rights. You will not attempt to modify, prepare derivative works from, translate, adapt, edit, decompile, disassemble, or reverse engineer any specifications, technology, applications, or software programs provided or made accessible to You or used by KickLight in connection with the KickLight Products and KickLight Partner Program in any way, unless expressly authorized in writing by KickLight. KickLight may modify the format and look and feel of the KickLight Products and KickLight Partner Program from time to time. Excluding Your User Content or Ads, You agree to assign and hereby do assign to KickLight and its licensors (as applicable) all right, title, and interest in and to any part of the KickLight Products and KickLight Partner Program that You may have or acquire during Your Participation. You warrant that all so-called moral rights You may have in the KickLight Products or KickLight Partner Program are hereby waived. You will not delete, remove, obscure, or in any manner alter the copyright, trademark, license, or other proprietary rights notices affixed to or contained in the KickLight Products or KickLight Partner Program. Any rights not expressly granted herein are deemed withheld.
- Digital Millennium Copyright Act. KickLight respects the intellectual property rights of others, and requests you to do the same. KickLight does not permit copyright infringing activities and infringement of intellectual property rights on its website, and KickLight will remove all content if properly notified that such content infringes on another's intellectual property rights. KickLight reserves the right to remove content without prior notice. KickLight may also terminate a user's access to the website if they are determined to be a repeat infringer. KickLight may remove such content and/or terminate a user's access for uploading such content in violation of the KickLight Copyright Policy and/or this Agreement at any time, without prior notice and at its sole discretion.
If you believe that your content has been copied in a way that constitutes copyright infringement, please provide KickLight's Copyright Agent the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright;
- a description of the copyrighted work that you claim has been infringed, including the URL (web page address) of the location where the copyrighted work exists or a copy of the copyrighted work;
- a description of where the material that you claim is infringing is located on the Website, including the URL;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
By mail:
John McIntire
KickLight
SRI International
333 Ravenswood Avenue
Menlo Park, CA 94025
By fax: 1-650-859-3834
By email:
Please also note that under Section 512(f) of the U.S. Copyright Act any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
If the content provider, member or user believes that the content that was removed or to which access was disabled is not infringing, or the content provider, member or user believes that it has the right to post and use such content from the copyright owner, the copyright owner's agent, or pursuant to the law, the content provider, member or user may send a counter-notice containing the following information to the Designated Agent listed above:- A physical or electronic signature of the content provider, member, or user;
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- A statement that the content provider, member or user has a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- Content provider's, member's or user's name, address, telephone number, and, if available, e-mail address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider's, member's or user's address is located, or if the content provider's, member's or user's address is located outside the United States, for any judicial district in which KickLight is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please also be advised that KickLight may terminate a user’s access in appropriate circumstances involving users who are repeat infringers.
Please note that, due to security concerns, attachments cannot be accepted. Accordingly, any notification of infringement submitted electronically with an attachment will not be received or processed.
Material available on or through other web sites may be protected by copyright and the intellectual property laws of the United States and/or other countries. The terms of use of those web sites, and neither the KickLight Copyright Policy nor this Agreement, govern your use of that material.
- Action Fraud
You will not, and will not authorize any party to, directly or indirectly, generate automated, fraudulent or otherwise invalid Advertising Actions. If, in KickLight's reasonable business judgment, Advertising Actions or activity related to Your Account is suspected or determined to be so-called "click fraud" or "impression fraud", whether in any automated or human way, by the use of a person, an automated script or a computer program (for example, online robots or "bots") to click on an Ad, or any other fraudulent means, to increase impressions, skew results, or imitate a legitimate user of a web browser, for example, by clicking on an Ad for the purpose of generating an improper click value and generating revenue (collectively, "Action Fraud"), KickLight may suspend or otherwise disable Your Account until such time as the matter is resolved to KickLight's satisfaction. You agree not to access User Content any technology or means other than the video playback pages of the Website itself, the KickLight embeddable player, or other explicitly authorized means KickLight may designate. - Adult Content
You will not use the KickLight Site or KickLight Partner Program for any purpose or in any manner to display, post, or make available any sexual, pornographic or erotic material nor upload, email, post, publish, distribute, transmit, submit or otherwise make available through the KickLight Site or KickLight Partner Program any User Content, Ads or Member Comments, that is of, or is suggestive of, a sexual, pornographic or erotic nature ("Adult Content"). Examples of content that KickLight, in its sole discretion, considers to be Adult Content include, but are not limited to material that is pornographic, obscene, indecent, or profane in its use of sexual language or description or depictions of sexual acts. If KickLight finds User Content that it determines, in its sole discretion, contains Adult Content, KickLight may, without notice, remove or block access to such User Content. KickLight reserves the right to suspend or cancel at any time and without notice Your Account, or deduct or withhold payments related to any User Content or Ads, that KickLight, in its sole discretion, determines to be in violation of this Section. KickLight will take all appropriate steps with User Content that KickLight believes violates applicable laws, including cooperation with any law enforcement investigation. If You see content that You believe is Adult Content or is in violation of law or this Section, You should contact KickLight immediately. - Copyright Infringement
You will not use the KickLight Site or KickLight Partner Program for any purpose or in any manner that infringes the copyrights of any third party, nor will You upload, email, post, publish, distribute, transmit, submit or otherwise make available through the KickLight Site or KickLight Partner Program any content, that infringes the copyrighted works or violates the intellectual property rights of any third party. In accordance with the Digital Millennium Copyright Act of 1998 (the "DMCA") (the text of which may be found on the U.S. Copyright Office website at "http://lcweb.loc.gov/copyright/"), it is KickLight's policy to respond to notices of any actual or alleged infringement that are reported to KickLight's "Designated Copyright Agent" and that comply with the DMCA. It is KickLight's policy to terminate the Accounts of users of repeat infringers or of users repeatedly charged with infringement, in appropriate circumstances. If You believe that a work has been copied in a way that constitutes copyright infringement, You should send a notice of infringement to KickLight's Designated Copyright Agent in accordance with KickLight's Copyright Policy (http://www.kicklight.com/copyright), incorporated herein, at the address indicated in KickLight's Copyright Policy. - Term and Termination
- Termination. KickLight may immediately terminate this Agreement, or cancel the KickLight Partner Program, for any reason at any time. You may terminate this Agreement at any time by disabling Your Account or providing notice to KickLight as set forth below ("Notifications").
-
Effect of Termination. General. Upon termination or expiration of this Agreement, Your right to Participate (including but not limited
Your right to receive compensation, if any, as an User or a Syndicator) will automatically terminate. In the event of termination, Your Account will be
disabled and You may not be granted access to Your Account or any files or other content contained in Your Account although residual copies of information
may remain in the KickLight Partner Program system. Upon termination: (i) all licenses granted to You hereunder will immediately terminate; (ii) You will
promptly destroy all copies of KickLight content in Your possession or control; and (iii) KickLight will make commercially reasonable pay all undisputed, Qualifying Amounts, if any, due to You within ninety (90) days from the last day of the month in which termination occurs. In no event, however, shall KickLight make payments for any earned balance less than fifty dollars ($50). Upon termination, KickLight may continue to use any user analytics collected hereunder for solely internal (including archival) purposes, and all related licenses You have granted KickLight shall remain in effect for this purpose only. In the event that this Agreement or the KickLight Partner Program expires or is terminated, KickLight shall not be obligated to return any materials to You.
Users. Upon termination, KickLight will remove any Ads or deactivate any Ad links associated with Your User Content. Although KickLight will use commercially reasonable efforts to ensure Your User Content is removed from the KickLight Site within seventy-two (72) hours following termination, KickLight shall have no obligation to remove any of Your User Content that: (i) is otherwise publicly available through the Internet or other publicly accessible medium; or (ii) any of Your User Content that is distributed by Syndicators in the KickLight Syndication Network or their end users without monetary compensation as set forth in this Agreement (see, Users: Your Irrevocable Non-Commercial Distribution License). In the event that KickLight does not remove Your User Content from the KickLight Site within seventy-two (72) hours through inadvertence or other error, KickLight shall not be liable to You for damages or charges of any kind in an amount greater than the revenues You would have been entitled to under this Agreement but for the termination. For the avoidance of doubt, KickLight cannot, and has no obligation to, remove any of Your User Content that has been distributed through the KickLight Syndication Network, and the Creative Commons Licenses You have granted in this Agreement shall remain in effect for this purpose only. - Survival. The rights and obligations contained in the following section of this Agreement will survive termination or expiration of this Agreement for any reason: KickLight's Ownership Rights, Your Ownership Rights, Users: Your Irrevocable Non-Commercial Distribution License, Syndicators: Your Right to Distribute Other Materials, Effect of Termination, Survival, Confidential Information, Indemnity, No Guarantees; Warranty Disclaimers, Limitation of Liability, and General.
- Notifications KickLight may provide notices to You by email to the email address specified in Your Account, by posting a message to Your Account interface or by posting a message to the KickLight Site, and is deemed received when sent (for email) or no more than fifteen (15) days after having been posted (for messages to Your Account interface or on the KickLight Site). Any notices to KickLight must be sent either: (i) via first class or air mail or overnight courier to KickLight Inc., KickLight Partner Program, 333 Ravenswood Avenue, Menlo Park, CA 94025; or (ii) via confirmed facsimile (fax number 650-859-3834), with a copy sent via first class or air mail or overnight courier, and are deemed given upon receipt.
- Confidential Information During the term of this Agreement, You may receive confidential information from KickLight related to Your Participation. Except as expressly authorized by this Agreement or necessary for performance under this Agreement, You will use reasonable efforts to maintain the confidentiality of all such information and You will not disclose such information without the prior written consent of KickLight. In no event will You use less effort to maintain the confidentiality of such information than You ordinarily use with respect to Your own confidential information. The foregoing will not restrict You from disclosing confidential information of KickLight: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that if You are required to make such a disclosure, You give reasonable and timely notice to KickLight to contest such order or requirement; and (b) on a confidential basis to Your legal or financial advisors, or prospective acquirers or investors. Examples of KickLight confidential information include without limitation: (i) all software, technology, services, algorithms, search engines and search indices, programming, specifications, materials, guidelines and documentation relating to the KickLight Products and the KickLight Partner Program; (ii) click-through or Advertising Action rates, conversion rates and other statistics relating to the KickLight Products and the KickLight Partner Program; and (iii) Trial Features or any other information designated in writing by KickLight as "Confidential" or an equivalent designation. Notwithstanding the foregoing, You may accurately disclose the amount of KickLight's payments, if any, to You made pursuant to this Agreement. Confidential information does not include information that: (w) is or becomes generally known to the public through no fault of or breach of this Agreement by You; (x) is rightfully known by You at the time of disclosure without a confidentiality obligation; (y) is independently developed by You without use of KickLight's confidential information; or (z) You rightfully obtain from a third party without disclosure restrictions.
- Representation & Warranties
- Your Authority. You represent and warrant to KickLight that: (i) You have all requisite power and authority, corporate or otherwise, to enter into this Agreement, conduct Yourself and Your business and to execute, deliver, and perform all of Your obligations under this Agreement; (ii) You have provided, and will continue to provide, information that is correct and current; (iii) You are the owner—or the authorized agent of the owner -- of Your User Content (if You are an User), Your Ads (if You are a Sponsor), Your Syndication Sites (if You are a Syndicator), and Your Member Comments (if You are a Community Member) and have full technical and editorial control of the same; (iv) You have the right to grant the licenses granted under this Agreement; (v) Your performance under this Agreement and/or the rights granted herein do not and will not conflict with or result in a breach or violation of any of the terms or provisions, or constitute a default under any contract or agreement, to which You are currently bound or will become bound in the future; (vi)Your performance under this Agreement will comply with all applicable laws, rules and regulations (including, without limitation, export control, privacy and obscenity laws), domestic or foreign; (vii) You will Participate solely for the purposes intended and expressly permitted.
- Your Materials. You represent and warrant that Your User Content (if You are an User), Your Ads (if You are a Sponsor), Your Syndication Sites (if You are a Syndicator), Your Member Comments (if You are a Community Member) or any other information or material You submit or make available to others during Your Participation, and KickLight's use thereof pursuant to this Agreement, (i) do not and will not, directly or indirectly, violate, infringe or breach any duty toward or rights of any person or entity, including without limitation any copyright, trademark, service mark, trade secret, other intellectual property, publicity or privacy right; (ii) do not contain Adult Content; (iii) are not fraudulent, misleading, hateful, tortuous, defamatory, slanderous, libelous, abusive, violent, threatening, profane, vulgar, or obscene; (iv) do not harass others, promote bigotry, racism, hatred or harm against any individual or group, promote discrimination based on race, sex, religion, nationality, sexual orientation, or age, or otherwise interfere with another party's use of the KickLight Products or Participation in the KickLight Partner Program; (v) do not promote illegal or harmful activities or substances (including without limitation activities that promote or provide instructional information about activities such as making or buying illegal weapons or substances); (vi) are not illegal, unlawful or contrary to the laws or regulations in any state or country where, as applicable, Your User Content, Your Ads, and Your Syndication Sites are created, displayed or accessed; (vii) do not contain any computer programming routines or viruses (including without limitation time bombs, Trojan Horses, worms, Easter Eggs, drop dead devices or cancelbots) that are intended to damage, interfere with, intercept, or expropriate any system data or personal information, permit unauthorized access to or Participation in the KickLight Partner Program or disable, damage or erase any portion of the User Content or Ads processed or stored therein; or (viii) do not constitute unsolicited bulk email, junk mail, spam, or chain letters.
- Your Actions. You represent and warrant that You will not, and will not authorize or encourage any third party to, directly or indirectly: (i) obtain any information or materials relating to the KickLight Products or the KickLight Partner Program through any means not intentionally made available by KickLight to You, or attempt to gain unauthorized access to KickLight's database, technology, computer systems, or networks associated with the KickLight Products or the KickLight Partner Program; or (ii) engage in any activity that disrupts, diminishes the quality of, interferes with the performance of or impairs the functionality of the KickLight Products and the KickLight Partner Program.
- Cooperation. You agree to cooperate fully with KickLight to investigate any suspected or actual activity that is in breach of this Agreement. You acknowledge that any violation of this section (see, Representations and Warranties) is a material breach of this Agreement and that KickLight may pursue any and all applicable legal and equitable remedies against You, including an immediate suspension of Your Account or termination of this Agreement, and the pursuit of all available civil or criminal remedies. KickLight reserves the right to investigate, at its own discretion, any activity that KickLight suspects may violate this Agreement. KickLight may, as applicable, withhold payment, notify Your bank, the authorities, suspend or cancel Your Account and/or take appropriate actions at any time without notice to You if KickLight, in its sole discretion, (i) suspects that You have breached or failed to comply (in full or in part) with any provision of this Agreement or any Policies or rules established by KickLight; or (ii) suspects that Your actions may be illegal or cause liability.
- Links The KickLight Products and the KickLight Partner Program may provide, or third parties may provide, links to other websites or resources. Because KickLight has no control over such sites and resources, You acknowledge and agree that KickLight is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, services or other materials on or available from such websites or resources. You further acknowledge and agree that KickLight 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 website or resource.
- Indemnity You will indemnify, defend, and hold KickLight and its officers, directors, employees, shareholders, successors, agents, affiliates, subsidiaries, and applicable third parties (e.g., relevant content creators, advertisers, syndication partners, referral partners, service providers, licensors, licensees, consultants and contractors) (collectively, the "KickLight Entities") harmless from and against any claims, liabilities, losses, costs, damages, or expenses (including reasonable attorneys' fees and costs) directly or indirectly arising out of or in any way relating to: (i) Your gross negligence or willful misconduct; (ii) Your User Content (if You are an User), Your Ads (if You are a Sponsor), Your Syndication Sites (if You are a Syndicator), Your Member Comments (if You are a Community Member) or any other information or material You submit during Participation; (iii) Your conduct, including Your use of KickLight Products or any other actions related to Your Participation; (iv) any actual violation or breach of this Agreement, or allegation of such violation or breach by a third party, including breach of any representation made by You hereunder; or (v) the alleged or actual violation or infringement of any intellectual property, privacy, publicity, confidentiality or proprietary rights of any third-party as a result of any action or Participation by You (collectively, the "Claims"). You are solely responsible for defending any such Claims, and for payment of losses, costs, damages, or expenses resulting from the foregoing to both a third party and to the KickLight Entities. KickLight shall have the right to withhold any payments due to You, if any, to offset liabilities and expenses covered hereunder. KickLight shall have the right, in its sole discretion, to select its own legal counsel to defend KickLight from any Claims (but by doing so shall not excuse Your indemnity obligations) and You shall be solely responsible for the payment of all KickLight's reasonable attorneys' fees incurred in connection therewith. You shall notify KickLight immediately if You become aware of any actual or potential claims, suits, actions, allegations or charges that could affect Your or KickLight's ability to fully perform their respective duties or to exercise its rights under this Agreement. You shall not, without the prior written approval of KickLight, settle, dispose, or enter into any proposed settlement or resolution of any Claim (whether having been finally adjudicated or otherwise) brought against You, if such settlement or resolution results in any obligation or liability for KickLight.
- No Guarantees; Warranty Disclaimer
- No Guarantees. KickLight makes no guarantees: (i) regarding the availability, operation, maintenance, timing, or delivery of the KickLight Products, the KickLight Partner Program or any distribution channel (or any portion thereof); (ii) that Participation will secure any success or generate any revenue or the amount of payment (if any) to be made hereunder; (iii) that User Content or Ads will be distributed in the KickLight Syndication Network; (iv) regarding the relevancy of any Ads to User Content; or (v) regarding Advertising Action rates, including the level or number of clicks, conversions to sales, or impressions on any Ad, in connection with User Content.
-
Warranty Disclaimers. Your use of the KickLight Products and Participation in the KickLight Partner Program are at Your sole discretion and risk. The KickLight Products and the KickLight Partner Program, and all materials, information, products and services included therein, are provide on an "AS IS" and "AS AVAILABLE" basis without warranties of any kind.
THE KICKLIGHT ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE KICKLIGHT PRODUCTS AND THE KICKLIGHT PARTNER PROGRAM, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING OR COURSE OF PERFORMANCE.
The KickLight Entities disclaim any warranties: (i) regarding the security, accuracy, reliability, timeliness and performance of the KickLight Products or the KickLight Partner Program; (ii) regarding the goods, services, advise, information or links provided by any Third Party Services Providers, Users, Sponsors, Syndicators or Community Members; (iii) that the KickLight Products or the KickLight Partner Program will meet Your requirements; or (iv) that the KickLight Products or the KickLight Partner Program will be error-free or that any errors will be corrected. No advice or information, whether oral or written, obtained by You from KickLight or from Your Participation, shall create any warranty not expressly stated in this Agreement.
KickLight assumes no responsibility for: (i) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any communication; and (ii) any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the KickLight Products or the KickLight Partner Program or combination thereof, including any injury or damage to You or to any person's computer related to or resulting from Participation.
Under no circumstances shall KickLight be responsible for any loss or damage, including personal injury or death, resulting from Participation, from any User Content, Ads or Member Comments posted on or through the KickLight Products or the KickLight Partner Program, or from the conduct of any users of the KickLight Products or Participation in the KickLight Partner Program, whether online or offline.
The Website is controlled and offered by KickLight from its facilities in the United States of America. KickLight makes no representations that the KickLight Website is appropriate or available for use in other locations. Those who access or use the KickLight Website from other jurisdictions do so at their own volition and are responsible for compliance with local law.
Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to You.
- LIMITATION OF LIABILITY
THE KICKLIGHT ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA OR PROFITS, COST OF PROCURING SUBSTITUTE PRODUCTS OR BUSINESS INTERRUPTION), WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE KICKLIGHT PRODUCTS, YOUR PARTICIPATION IN THE KICKLIGHT PARTNER PROGRAM OR USE OF ANY MATERIALS AVAILABLE TO YOU FROM OR THROUGH THE KICKLIGHT PARTNER PROGRAM (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT KICKLIGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. KICKLIGHT'S LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO KICKLIGHT FOR THE KICKLIGHT PRODUCTS OR PARTICIPATION IN THE KICKLIGHT PARTNER PROGRAM.
YOU SPECIFICALLY ACKNOWLEDGE THAT KICKLIGHT SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
You acknowledge that KickLight permits Your Participation relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain and of the allocation of risks between the parties. KickLight shall no liability for any failure or delay in the performance of its obligations hereunder on account of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, extraordinary Internet congestion or extraordinary connectivity issues experienced by major telecommunications providers and unrelated to KickLight's infrastructure or connectivity to the Internet, or failure of any Syndication Site or third party distribution partner, (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, KickLight will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues.
YOU AGREE THAT YOU MUST COMMENCE ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE KICKLIGHT WEBSITE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Some states or jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to You. - General
- Governing Law; Arbitration. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is excluded and does not apply to this Agreement. Except as expressly set forth in subsection (b) below ("Injunctive Relief"), any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be submitted to the Judicial Arbitration and Mediation Services, Inc. or its successor ("JAMS") and decided by binding arbitration, in accordance with the JAMS' Comprehensive Arbitration Rules and Procedures (Streamlined Arbitration Rules and Procedures) as such rules shall be in effect on the date of submission to arbitration, by one arbitrator reasonably familiar with the business pertaining to the products and services covered by this Agreement, appointed in accordance with such Rules and Procedures. The arbitrator shall apply California law to the merits of any dispute or claim. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in the City and County of San Francisco, California, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. In the event any action is brought by either party in connection with this Agreement, the substantially prevailing party will be entitled to recover from the other party all the costs, attorneys' fees and other expenses reasonably incurred by such party. All offers, promises, conduct and statements, whether oral or written, made in the course of the arbitration by any of the parties, their agents, employees, experts and attorneys, and by the arbitrator and any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the arbitration.
- Injunctive Relief. Notwithstanding the "Governing Law; Arbitration" section above, You agree that certain breaches by You would cause irreparable injury to KickLight, for which there are no adequate remedies at law, and nothing in this Section shall be deemed to prevent or delay KickLight's attempt to seek a temporary restraining order, preliminary injunction, specific performance or other interim or conservatory relief from any court having jurisdiction, without any abridgment of the power of the arbitrator, for Your breach of the following terms set forth in this Agreement: (i) KickLight's Ownership Rights; (ii) Copyright Infringement; and (iii) Confidential Information.
- Assignment. You may not assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of KickLight. Any attempted assignment in violation of this Section will be null and void and of no force or effect. KickLight may assign this Agreement freely at any time without notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's permitted successors and assigns.
- Waiver; Severability. The failure to require performance of any provision shall not affect KickLight's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any portion of this Agreement is found to be unenforceable, such portion will be modified to reflect the parties' intention and only to the extent necessary to make it enforceable, and the remaining provisions of this Agreement will remain in full force and effect.
- Export Restrictions/Legal Compliance. You agree to comply with all United States and other applicable export laws and related restrictions and regulations, and not to directly or indirectly export, provide or otherwise make available the services and products of KickLight in violation of any such export laws, unless any required prior authorizations or necessary approvals are obtained by You, at Your expense, from the applicable United States or foreign authority.
- Entire Agreement. This Agreement constitutes the entire and exclusive understanding and agreement between You and KickLight regarding this subject matter, and supersedes any and all prior or contemporaneous agreements or understandings, written and oral, between You and KickLight relating to this subject matter. You may be subject to additional terms and conditions that may apply when You use or access certain features of the KickLight Partner Program.
- Relationship. You and KickLight are independent contractors, and this Agreement, including but not limited to submission or distribution of any User Content or Ads, will not, in whole or in part, establish any relationship of partnership, joint venture, employment, franchise, or agency between the You and KickLight. Neither party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent. Neither party is authorized to act as an agent or representative of the other or for or on behalf of the other party in any capacity other than as expressly set forth in this Agreement. Neither party shall in any manner advertise, represent or hold itself (or any of its agents) out as so acting or being authorized so to act, or incur any liabilities or obligations on behalf of, or in the name of, the other party, unless specifically provided for in this Agreement. Moreover, each party shall be solely responsible for the payment of all of its own taxes, assessments and all other similar withholdings from or assessments on any monies paid hereunder or in connection with the transactions contemplated hereby.
- Reserved Rights. KickLight reserves the right to change, in whole or in part, the names, logos, presentation and display of the KickLight Terms of Service, the KickLight Partner Program and the KickLight Products at any time in its sole discretion.
