TVNOW.me Member Agreement
This is an agreement between Telcom Innovations, Inc. ("TVNOW.me") and You. What we will refer to after this as the "Agreement" includes this document headed "TVNOW.me Member Agreement" and also any policies, guidelines and amendments that may be incorporated into this TVNOW.me Member Agreement or presented to You from time to time. This Agreement describes the terms and conditions on which TVNOW.me offers You participation in TVNOW.me's video distribution and related services (the "TVNOW.me Membership Program" as further described below). "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 TVNOW.me Membership Program. By registering, clicking "I Agree" or otherwise participating in the TVNOW.me Membership Program, You represent to TVNOW.me that You are at least eighteen (18) years of age or otherwise capable of entering into and performing legal agreements, and that You agree to be bound by the following terms and conditions. If You register on behalf of a business, You represent to TVNOW.me 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 register for or participate in the TVNOW.me Membership Program.
With this in mind, You agree to and acknowledge the following:
1. The TVNOW.me Movie Network
TVNOW.me develops and maintains a network of video content creators. TVNOW.me also provides related proprietary and non-proprietary technologies that facilitate the distribution of video content from participating content creators, that display advertisements on the TVNOW.me website, and that provide links to advertising content from participating advertising partners. This network and technology are referred to after this as the "Internal TVNOW.me Movie Network." In addition, TVNOW.me has and makes arrangements with third-party partners to package content from its Network Members for use on one or more third-party distribution channels (each an “External TVNOW.me Movie Network”). The Internal TVNOW.me Movie Network and the External TVNOW.me Movie Network are referred to after this as the “TVNOW.me Movie Network.” TVNOW.me makes, or may make, the TVNOW.me Movie Network available to the public via the TVNOW.me website, currently located at "www.TVNOW.me.com" (the "TVNOW.me Site") and/or via the website's software applications, plug-ins, blogs, media search engines, toolbars, games, components or downloadable code, and other viral online media such as peer-to-peer networks, file sharing, instant messaging and email of TVNOW.me.
2. The TVNOW.me Membership Program
The TVNOW.me Movie Network, the TVNOW.me Site and related products and services are together referred to after this as the "TVNOW.me Products". The TVNOW.me Membership Program permits You to participate in, use and/or obtain access to the TVNOW.me Products in three ways: (i) a Free Account; (ii) a Private Screenings Account; (iii) a Producer Account; (iv) an Executive Producer Account; or (v) a Distributor Account.
The Free Account allows You to do the following: Participation as a content creator, by creating and submitting video content for distribution in the TVNOW.me Movie Network. After this, we refer to anyone who participates in this way as a "Content Producer"; Participation as a member of TVNOW.me, by submitting reviews, communicating with other TVNOW.me Membership Program members and sharing or submitting other information (we refer to anyone who participates in this way as a "Network Member"); Access to online management services relating to Your websites, video content and advertising campaigns (we refer to such use as "Management Services"); Access to certain TVNOW.me applications, software and related services, such as access to TVNOW.me's API (collectively with other applications that are provided at a particular membership level, the "Applications"); Access to trial features, products and services ("Trial Features").
The Private Screenings Account includes all of the Free Account features, plus the following: Ability to host private sessions with invited guests to view your film, trailer, dailies or engage in online conferencing with other producers and studio execs. Participation in live webcam chat sessions with guest speakers; Content viewing without banner ads; Priority uploading; additional Content Management features; mobile content conversion; access additional information about viewers of Your Content; and full profile management features.
The Producer Account includes all of the features available in the Private Screenings Account, plus the following: access to exclusive TVNOW.me Content; and access to live webcam chat rooms with film industry experts who serve as members of the TVNOW.me Advisory Board.
The Executive Producer Account includes all of the features available in the Producer Account, plus the following: Customize and execute advertising campaigns. Advertising opportunities include banner ads on your channel, pre/middle/post roll ads. Ad campaign revenues are designed with an 80/20 split. Set-Top-Box application access and delivery.
The Distributor Account includes all of the features available in the Executive Producer Account, plus the following: Discussion with TVNOW.me Executive's required for this account level. In order to initiate email distributor@TVNOW.me.com
Anyone who provides content to TVNOW.me is a “Content Producer” and any participation in the TVNOW.me Membership Program and any use of or access to the TVNOW.me Products as "Participation" or to "Participate." (Participation includes but is not limited to the functionality available to Free, Private Screenings, Producer, Executive Producer and Distributor Participants. Your use of or access to certain features of the TVNOW.me Membership Program may require You to agree with and accept additional terms and conditions. If there is a conflict between this Agreement and any additional terms and conditions of use posted for a specific feature, those additional terms and conditions shall have precedence with respect to Your use of or access to that feature.
To Participate, You must register online with TVNOW.me at the TVNOW.me Site and create a unique, password-protected account ("Account") and choose the level of membership Participation - Free, Private Screenings, Producer, Executive Producer or Distributor. 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 TVNOW.me will have no responsibility or liability, directly or indirectly, for failure to deliver notices or payments that result from inaccurate Account information. Within your account management dashboard, You can elect whether Your content will be used in the Internal TVNOW.me Movie Network, the External TVNOW.me Movie Network, or both. If You have previously authorized TVNOW.me to use Your content, TVNOW.me has ninety (90) days after and change that disallows such use before the change will take effect.
TVNOW.me, 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 TVNOW.me Products or the TVNOW.me Membership Program (or any parts thereof). Modifications to this Agreement and Policies will be posted on the TVNOW.me Site or made in compliance with any notice requirements set forth in this Agreement. Modifications to the TVNOW.me Products or the TVNOW.me Membership Program will be effective upon posting to the TVNOW.me Site. You agree that TVNOW.me shall not be liable to You or to any third party for any modification, suspension or discontinuance of this Agreement, the Policies, the TVNOW.me Products or the TVNOW.me Membership Program. By continuing to Participate after TVNOW.me 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.
To remain eligible for Participation, You must at all times comply with the terms and conditions of this Agreement and all Policies. TVNOW.me reserves the right to refuse Participation to any applicant or participant at any time in its sole discretion.
If You register to Participate, You may communicate with TVNOW.me and other Account holders, post or publish comments or rating features regarding Video Content and Ads, TVNOW.me Products or the TVNOW.me Membership Program in, as may be made available at TVNOW.me's complete discretion, a discussion group, webcam 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 TVNOW.me or through the TVNOW.me Membership Program, whether created by or for You, including but not limited to websites and content proximately reachable from such Member Comments. TVNOW.me disclaims all liability relating to Your Member Comments. As more fully set forth in Section 17 ("Representations and Warranties"), You may not submit any Member Comments that contain any sexually suggestive, pornographic, infringing, hate-related, violent or illegal content.
You are solely responsible for all video content You transmit or submit to TVNOW.me, whether created by or for You, including but not limited to graphics, music, sound, images, files, photos, animation, artwork, text, data, information, messages, hypertext links, scripts or other material (collectively, "Video Content"). TVNOW.me disclaims all liability relating to Your Video Content. As more fully set forth in Section 17 ("Representations and Warranties"), You may not submit Video Content that contains any pornographic, infringing, hate-related, violent or illegal content.
You agree and accept that TVNOW.me does not guarantee that Your Video Content will be distributed on any part of the TVNOW.me Movie Network. TVNOW.me may, in its sole discretion, and without liability:
• reject, suspend access to or remove any of Your Video Content from the TVNOW.me Movie Network at any time that TVNOW.me deems it, in its sole discretion, unsuitable for the TVNOW.me Movie Network;
• modify any metadata You submit with Your Video Content, including without limitation meta tags, age rating, descriptive language, search terms, category and keyword modifiers;
• modify and/or correct any statistical data created through the use of "robots", "spiders" or "offline readers" to generate artificial views of Video Content.
In connection with TVNOW.me's marketing, distribution and provision of the TVNOW.me Membership Program as contemplated herein, You permit TVNOW.me, as further described in Section 10, to:
• host, index and cache Your Video Content;
• tag Your Video Content with information that will be used by TVNOW.me to identity it as Your Video Content and assist TVNOW.me in properly tracking and calculating any revenue amounts that You may earn;
• associate TVNOW.me's ad insertion software ("Ad Insertion Software") with Your Video Content to enable TVNOW.me, if applicable and in TVNOW.me's discretion, to deliver Ads with Your Video Content ("Ads" in this Agreement refers to materials used by TVNOW.me's advertisers, and links to their associated websites);
• engage in such further actions regarding Your Video Content as may be necessary or appropriate in order to effect the purposes of the TVNOW.me Membership Program.
During the term of this Agreement You may request that TVNOW.me remove any or all of Your Video Content from the TVNOW.me Site. Upon receipt of such request, TVNOW.me will remove any Ads associated with such Video Content and Your right to receive compensation, if any, for the removed Video Content will automatically terminate. In accordance with Section 8 ("Revenue and Payment Terms") below, TVNOW.me will pay You all undisputed amounts for the removed Video Content, if any, due to You within ninety (90) days from the last day of the calendar quarter in which such request to remove occurs. TVNOW.me will use commercially reasonable efforts to remove your Video Content from the TVNOW.me Site reasonably promptly upon receipt of Your request. However, You acknowledge and agree that TVNOW.me shall have no obligation to attempt to remove from distribution any of Your Video Content that is otherwise publicly available through the Internet or other publicly accessible medium, or to remove from distribution any of Your Video Content for a period of six months following your receipt of funds from TVNOW.me pursuant to TVNOW.me's "Movie's of the Month" award program, other than for reasons pertaining to substantiated allegation of intellectual property infringement.
In the event that TVNOW.me fails to promptly remove such requested Video Content from the TVNOW.me Site after Your request for removal, TVNOW.me shall not be liable to You for damages or charges of any kind in an amount greater than ten dollars ($10). For the avoidance of doubt, the Creative Commons BY-NC-ND License (defined below) that You have granted in Section 10(g) ("Content Producers: Your Irrevocable Non-Commercial Distribution License") herein shall remain in effect for this purpose only.
You agree and accept that TVNOW.me, upon request of the applicable Content Producers or in its sole discretion, may add or remove from the TVNOW.me Site any or all Video Content at any time. In conjunction with such removal of Video Content, TVNOW.me will remove any Ads associated with such Video Content that has been distributed in the TVNOW.me Movie Network. TVNOW.me will pay You all undisputed amounts, if any, due to You within ninety (90) days from the last day of the calendar quarter in which such request to remove occurs.
You agree that You will not:
• use or launch any automated system, including without limitation, "robots", "spiders" or "offline readers" to generate artificial views of Video Content, or to otherwise access the TVNOW.me Site in a manner that sends more request messages to the TVNOW.me 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;
• modify any specifications, technology or application codes, including without limitation TVNOW.me's Ad Insertion Software, provided to You by TVNOW.me or as embedded in the Video Content in any way, unless expressly authorized in writing by TVNOW.me;
• intersperse any content between Video 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 Video 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.
Your access to and use of certain Applications and accompanying documentation, including but not limited to TVNOW.me's API or any software made available to You to assist You in uploading Your Video Content, may be subject to the terms of separate license agreements between You and TVNOW.me. You will be required to read and indicate Your agreement to such separate terms prior to installing or using such Applications.
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 Section 16 ("Confidential Information").
7. Participation at Your Own Risk
Your Participation is at Your own risk. Although the TVNOW.me Membership Program enables users to connect and share Video Content and Member Comments with one another and with end users or viewers, TVNOW.me has no responsibility to control or monitor any information or exchanges between or among users. TVNOW.me does not control the Video Content, Ads and Member Comments made available through the TVNOW.me Products. Some people may find Video Content, Ads and Member Comments objectionable, inappropriate or offensive. TVNOW.me does not control or guarantee, nor is TVNOW.me responsible for, the truth, accuracy, ownership, completeness, integrity, safety, timeliness, quality, appropriateness, legality or applicability of any Video Content, Ads and Member Comments. TVNOW.me assumes no responsibility for monitoring any Video Content, Ads or Member Comments or conduct during Participation. If TVNOW.me chooses, at any time in its sole discretion, to monitor (in whole or in part) Video Content, Ads, Member Comments or conduct during Participation, TVNOW.me nonetheless assumes no responsibility for Video Content, Ads and Member Comments, no obligation to modify or remove any Video Content, Ads or Member Comments and no responsibility for conduct during Participation. You agree that TVNOW.me has no responsibility or liability for the deletion or failure to store, maintain or transmit any Video Content, Ads or Member Comments.
8. Revenue and Payment Terms
(a) Subscription Payments (payments by You). Your selection of a Private Screenings, Producer, Executive Producer or Distributor account requires that You pay a monthly subscription fee (the “Subscription Fee”) in advance that TVNOW.me can change with thirty (30) days prior notice. The current Subscription Fees are listed on the TVNOW.me Site. Your credit card or Paypal account will be charged monthly for Your Subscription Fee automatically each month. You may also cancel Your Premium Membership without penalty. If You cancel during any monthly period, You will not be refunded any amount of the Subscription Fee.
(b) Revenue Sources (payments to You). You may be able to generate revenue through Participation as a Content Producer, through valid, end-user activity relating to Video Content and PPV/VOD Sales of Your Video Content via Pay-Per-View/Video-On-Demand through the TVNOW.me website, TVNOW.me Mobile and TVNOW.me Set-Top-Box applications. Such activity could include for example, without limitation, PPV/VOD rentals of your content, or inclusion of Video Content as part of a segment for broadcast on other affiliate channels in the TVNOW.me Movie Network or PPV/VOD Sales to end-users of mobile or HD versions of Your Video Content (“PPV/VOD Sales”). By uploading Your Video Content onto the TVNOW.me Site, You grant TVNOW.me the right to use take PPV/VOD Actions related to Your Video Content, TVNOW.me will sell and collect for advertisements when Your Video Content is viewed.
Subject to Your compliance with the terms and conditions of this Agreement, TVNOW.me mayl pay You a Revenue Share, or, in the case of Video Content from multiple Content Producers, a pro-rata share of the applicable Revenue Share of the gross revenue paid to TVNOW.me from the applicable advertisers, third party service providers and TVNOW.me Movie Network affiliates, less any third party affiliate acquisition fees, as a result of valid PPV/VOD Actions generated in connection with Your Video Content distributed in the Internal TVNOW.me Movie Network. Where the Revenue Share is related to gross revenue for advertisements on the Internal TVNOW.me Movie Network, the Revenue Share shall be 50% and where the Revenue Share is related to gross revenue for advertisements on the External TVNOW.me Movie Network, the Revenue Share shall be 10%.
If you opt-in for PPV/VOD Sales, You will set the price at whatever value You want to sell Your Video Content for (above TVNOW.me’s fee that is known as the “TVNOW.me Distribution Fee”) and TVNOW.me will pay you the difference between the sales price and the TVNOW.me Distribution Fee, subject to the other limitations set forth herein relating to Revenue Share and Payment Terms. The license You will be granting to the end-user will be a personal, non-commercial right to view the Video Content on their mobile device, personal computer or set-top-box application, subject to TVNOW.me’s then current Terms of Sale.
(c) Payment Terms. Amounts due to You, if any, will be made in U.S. Dollars. Payments will be available for withdrawal or transfer thirty (30) days after the end of the calendar quarter in which they are recognized by TVNOW.me. For example, revenue generated as a result of PPV/VOD Actions on June 30 and July 1 will be available for withdrawal on July 30 and October 30, respectively. TVNOW.me will not be liable for damages resulting from any failure to post payments to Your Account within such thirty (30) day period. Notwithstanding the foregoing, TVNOW.me shall make no payments until the total due to You is at least twenty-five dollars ($25). You will not be entitled to receive interest on any Account payments. Except as contemplated by subsection (c) ("Exceptions") below, payments will remain in Your Account until: (x) You transfer such amounts to a PayPal Account or other payment system acceptable to TVNOW.me; (y) You direct TVNOW.me in writing to distribute such payments to You via check, wire transfer or electronic transfer to a designated bank or PayPal Account or other payment system acceptable to TVNOW.me, or to issue you with a credit against your order of advertising or other services from TVNOW.me, or (z) TVNOW.me exercises its options under Section 14 ("Term and Termination") below. If You dispute TVNOW.me's payments made to You under this Agreement, You must notify TVNOW.me in writing within thirty (30) days of TVNOW.me depositing such payment to Your Account. Failure to notify TVNOW.me in this manner will result in Your waiver of any claim relating to such dispute. TVNOW.me will use reasonable efforts to resolve any such dispute in good faith, but TVNOW.me's resolution will be final. You are responsible for any and all applicable taxes or charges imposed by any government entity in connection with Your Participation. TVNOW.me may change its pricing and/or payment structure at any time, upon thirty (30) days' prior notice of any such change (unless TVNOW.me is required by law to provide more than thirty (30) days notice). All modified payment terms shall be effective thirty (30) days after notice has been provided to You by TVNOW.me (or such other time period specified in such notice). If any such modified payment terms are not acceptable to You, Your only recourse is to cease Participation. By continuing to Participate following notice of any modified payment terms as set forth herein, You accept and agree to be bound by such modified payment terms.
(d) Exceptions. TVNOW.me will have no obligation to pay any amounts, and is permitted to deduct or withhold any amounts from or posted to Your Account, determined or reasonably suspected by TVNOW.me in its sole discretion to have resulted from: (i) Action Fraud (as defined in Section 11 ("Action Fraud") below), including without limitation through any clicks originating from Your IP addresses or computers under Your control, solicited by payment of money, false representation or request for end users Actions co-mingled with a significant number of invalid PPV/VOD Actions; (ii) PPV/VOD Actions originating on Video Content that breaches this Agreement, including but not limited to the restrictions set forth in Section 12 ("Adult Content") and Section 13 ("Copyright Infringement"); or (iii) fraudulent, misleading or false activities. TVNOW.me reserves the right to withhold or deduct payment, if applicable, or suspend or otherwise disable Your Account, pending TVNOW.me's reasonable investigation of any of the foregoing or any breach of this Agreement by You.
10. Proprietary Rights & Licenses
(a) TVNOW.me's Ownership Rights. TVNOW.me and its licensors own all right, title and interest, including without limitation all worldwide intellectual property rights in the TVNOW.me Products and the TVNOW.me Membership Program, and all such rights to all derivative works or enhancements of, in and to, or relating to, the TVNOW.me Products and the TVNOW.me Membership Program. By entering into this Agreement or by Your Participation, You will not acquire any intellectual property or similar rights in the TVNOW.me Products, the TVNOW.me Membership 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 TVNOW.me Products, the TVNOW.me Membership Program or related products and services; or (ii) use TVNOW.me's name, logo, trademark, trade names or service marks except as expressly permitted in this Agreement without TVNOW.me's prior written consent.
(b) 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 Video Content that is submitted, posted or displayed by You on or through the TVNOW.me Products and TVNOW.me Membership Program. TVNOW.me shall not acquire any right, title or interest in or to such Video Content, except as provided herein. Any rights not granted by You herein are deemed retained by You. As more fully described in Section 14 ("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 Video Content You provide or with respect to particular works You provide. If You choose to revoke any of Your revocable licenses, TVNOW.me will use commercially reasonable efforts to remove Your Video Content from the TVNOW.me Site reasonably promptly upon receipt of Your notice of revocation. You acknowledge that You are aware that TVNOW.me has limited practical ability to control or monitor possible infringement of Your intellectual property rights by other parties and that TVNOW.me assumes no responsibility for controlling or monitoring such intellectual property rights. In addition, TVNOW.me is not responsible for enforcing Your intellectual property or for suing or taking other legal action against infringers who fail to cease using Your Video Content upon revocation. You or a third party licensor, as appropriate, are responsible for protecting Your intellectual property rights. TVNOW.me 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 TVNOW.me has an obligation to do so in any other instance and this does not mean that TVNOW.me has an obligation to effectively protect or enforce Your intellectual property rights. In the event that TVNOW.me's Theatrical Distribution division enters into an Acquisition and/or Distribution Agreement with you, a separate agreement with separate terms and conditions will be provided.
(c) TVNOW.me'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 TVNOW.me Movie Network (the "TVNOW.me Marks") solely for purposes of identifying TVNOW.me and solely in connection with Your permitted activities under this Agreement. You agree that the TVNOW.me Marks and all associated goodwill are and will remain the sole property of TVNOW.me, that any goodwill generated as a result of Your licensed use of TVNOW.me Marks belongs exclusively to TVNOW.me and inures solely to the benefit of TVNOW.me, and that Your use of TVNOW.me Marks is subject to TVNOW.me's control of the quality of any products or services with respect to which You may be authorized to use TVNOW.me Marks.
(d) Your Member Comments License to TVNOW.me. 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) TVNOW.me a worldwide, royalty-free, non-exclusive, sub licensable, transferable, 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.
(e) Your Revocable Limited License to TVNOW.me. In order to allow TVNOW.me to distribute Your Video Content in the TVNOW.me Movie Network, You hereby grant (or warrant that the owner of such rights has expressly granted) to TVNOW.me a worldwide, revocable, non-exclusive, sublicensable and transferable, limited right and license to use, reproduce, modify and adapt, excerpt, publish, transmit, publicly perform, display, reference, store, host, index and cache, in any form, medium or technology now known or later developed, any Video Content, Member Comments or materials You submit to TVNOW.me, in whole or in part, whether created by or for You, by any method, in any and all media and through any media distribution channels, whether currently existing or hereafter developed. You understand that Your revocable limited license to TVNOW.me includes Your grant to TVNOW.me of the right to create, display and distribute (as set forth more fully in the previous sentence) a derivative work based on Your Video Content, which derivative work is comprised either solely of Your Video Content as adapted to include TVNOW.me's computer software, including TVNOW.me's Ad Insertion Software, whose functions are to enable Ads to be associated with Your Video Content, to identity Your submission as Your Video Content, to assist TVNOW.me in properly tracking and calculating any revenue amounts that You may earn, and to effect related functions or to include Your Video Content as part of a compilation project for broadcast on the TVNOW.me Movie Network through an affiliate. (After this we refer to the aforementioned derivative work as "Your TVNOW.me Modified Video Content"). TVNOW.me's rights, with respect to Your TVNOW.me Modified Video Content, are limited to its rights set forth in this Agreement, and TVNOW.me expressly waives and disclaims, with respect to You, any other rights it might otherwise hold to Your TVNOW.me Modified Video Content under copyright law. As more fully described in Section 14 ("Term and Termination"), this license will terminate: (i) with respect to any Video Content that You have requested be removed in accordance with Section 6(a) ("Participation (Content Producers)"); and (ii) upon termination of the Agreement in accordance with Section 14 ("Term and Termination").
(f) Your Revocable Commercial Distribution License to TVNOW.me. In order to allow TVNOW.me to distribute Your TVNOW.me Modified Video Content in the TVNOW.me Movie Network, You hereby grant (or warrant that the owner of such rights has expressly granted) to TVNOW.me a limited, revocable right to use, reproduce, publicly perform, distribute, adapt, and display Your TVNOW.me Modified Video Content for monetary compensation or commercial purposes in the TVNOW.me Movie Network as contemplated by this Agreement and to engage in such further actions relating to and in connection with Your Video Content as may be necessary or appropriate in order to effect the purposes of the TVNOW.me Movie Network.
(g) Your Irrevocable Non-Commercial Distribution License. You hereby grant (or warrant that the owner of such rights has expressly granted) to any persons or entities who want to use Your TVNOW.me Modified Video Content in a manner not intended for commercial advantage or private monetary compensation, a right to use, reproduce, publicly perform, distribute and display Your TVNOW.me Modified Video 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 TVNOW.me holds any rights to Your TVNOW.me Modified Video Content pursuant to Section 10(d) of this Agreement, TVNOW.me also grants the rights stated in this paragraph to such persons or entities pursuant to the Creative Commons BY-NC-ND License.
(h) Your Information. You authorize TVNOW.me to use, as applicable to Your Participation, Your Video Content, name, likeness, trademarks, service marks, trade names, proprietary logos, domain names, usage statistics and any other source or business identifiers (collectively, "Your Information") in presentations, as a feature on the TVNOW.me Site, advertising and marketing materials, press releases, customer lists and financial reports, in connection with TVNOW.me's marketing, publicity, distribution and provision of the TVNOW.me Products and TVNOW.me Membership Program. You also grant TVNOW.me 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 TVNOW.me Products and the TVNOW.me Membership Program and for soliciting other distributors, publishers, creators and advertisers to use the TVNOW.me Products and Participate. You acknowledge and agree: (i) that You understand that You may provide, and TVNOW.me may collect, Your Information during Your Participation; and (ii) that Your Information may be shared with TVNOW.me's affiliates, business partners, sponsors, advertisers, employees, customers and distribution partners.
(i) No Endorsement; No Publicity. TVNOW.me does not endorse, verify, evaluate or guarantee any information or Video Content or Ads provided by users, including You, and nothing shall be considered as an endorsement, verification or guarantee of any information or Video 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 TVNOW.me of You or Your Video Content or Ads; or (ii) relating to this Agreement, without the prior review and written approval of TVNOW.me. Notwithstanding the foregoing, You may accurately disclose and describe Your Participation and Your Video Content (for example, describing and promoting Your Video Content on Your blog or in emails).
(j) 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 TVNOW.me in connection with the TVNOW.me Products and TVNOW.me Membership Program in any way, unless expressly authorized in writing by TVNOW.me. TVNOW.me may modify the format and look and feel of the TVNOW.me Products and TVNOW.me Membership Program from time to time. Excluding Your Video Content or Ads, You agree to assign and hereby do assign to TVNOW.me and its licensors (as applicable) all right, title and interest in and to any part of the TVNOW.me Products and TVNOW.me Membership Program that You may have or acquire during Your Participation. You warrant that all so-called moral rights You may have in the TVNOW.me Products or TVNOW.me Membership 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 TVNOW.me Products or TVNOW.me Membership Program. Any rights not expressly granted herein are deemed withheld.
11. Action Fraud
You will not, and will not authorize any party to, directly or indirectly, generate automated, fraudulent or otherwise invalid PPV/VOD Actions. If, in TVNOW.me's reasonable business judgment, PPV/VOD Actions or activity related to Your Account is suspected or determined to be so-called "click fraud" or "transaction 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 initiate a PPV/VOD transaction, or any other fraudulent means, to increase impressions, skew results or imitate a legitimate user of a web browser, for example, by initiating POPV/VOD transaction value and generating revenue (collectively, "Action Fraud"), TVNOW.me may suspend or otherwise disable Your Account until such time as the matter is resolved to TVNOW.me's satisfaction.
12. Adult Content
You will not use the TVNOW.me Site or TVNOW.me Membership Program for any purpose or in any manner to display, post or make available any explicit, graphic sexual, pornographic or erotic material nor upload, email, post, publish, distribute, transmit, submit or otherwise make available through the TVNOW.me Site or TVNOW.me Membership Program any Video Content, Ads or Member Comments, that is of an explicit, graphic sexual, pornographic or erotic nature ("Adult Content"). Examples of content that TVNOW.me, 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 TVNOW.me finds Video Content that it determines, in its sole discretion, contains Adult Content, TVNOW.me may, without notice, remove or block access to such Video Content. TVNOW.me reserves the right to suspend or cancel at any time and without notice Your Account, or deduct or withhold payments related to any Video Content or Ads, that TVNOW.me, in its sole discretion, determines to be in violation of this Section. TVNOW.me will take all appropriate steps with Video Content that TVNOW.me 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 TVNOW.me immediately.
13. Copyright Infringement
You will not use the TVNOW.me Site or TVNOW.me Membership 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 TVNOW.me Site or TVNOW.me Membership 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 TVNOW.me's policy to respond to notices of any actual or alleged infringement that are reported to TVNOW.me's "Designated Copyright Agent" and that comply with the DMCA. It is TVNOW.me'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 TVNOW.me's Designated Copyright Agent in accordance with TVNOW.me's Copyright Policy (http://www.TVNOW.me.com/info/copyright/), incorporated herein, at the address indicated in TVNOW.me's Copyright Policy.
14. Term and Termination
(a) Termination. TVNOW.me may immediately terminate this Agreement, or cancel the TVNOW.me Membership Program, for any reason at any time. You may terminate this Agreement at any time by disabling Your Account or providing notice to TVNOW.me as set forth in Section 15 ("Notifications").
(b) 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 a Content Producer) 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 TVNOW.me Membership Program system. Upon termination: (i) all licenses granted to You hereunder will immediately terminate; (ii) You will promptly destroy all copies of TVNOW.me Products in Your possession or control; and (iii) TVNOW.me will pay all undisputed 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 TVNOW.me make payments for any earned balance less than twenty-five dollars ($25). Upon termination, TVNOW.me may continue to use any user analytics collected hereunder for solely internal (including archival) purposes, and all related licenses You have granted TVNOW.me shall remain in effect for this purpose only. In the event that this Agreement or the TVNOW.me Membership Program expires or is terminated, TVNOW.me shall not be obligated to return any materials to You.
Content Producers. Upon termination, TVNOW.me will remove any VOD/PPV functionality and/or Ad links associated with Your Video Content. Although TVNOW.me will use commercially reasonable efforts to ensure Your Video Content is removed from the TVNOW.me Site reasonably promptly following termination, TVNOW.me shall have no obligation to remove any of Your Video Content that is otherwise publicly available through the Internet or other publicly accessible medium. In the event that TVNOW.me does not promptly remove Your Video Content from the TVNOW.me Site through inadvertence or other error, TVNOW.me 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.
(c) Survival. The rights and obligations contained in Section 10(a) ("TVNOW.me's Ownership Rights") and 10(b) ("Your Ownership Rights"), Section 10(f) ("Content Producers: Your Irrevocable Non-Commercial Distribution License"), Section 14(b) ("Effect of Termination"), Section 14(c) ("Survival"), Section 16 ("Confidential Information"), Section 19 ("Indemnity"), Section 20 ("No Guarantees; Warranty Disclaimers"), Section 21 ("Limitation of Liability") and Section 22 ("General") of this Agreement will survive termination or expiration of this Agreement for any reason.
TVNOW.me 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 TVNOW.me 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 TVNOW.me Site). Any notices to TVNOW.me must be sent either: (i) via first class or air mail or overnight courier to TVNOW.me, Inc., TVNOW.me Membership Program, 7925 Stone Creek Drive, Suite 110, Chanhassen, MN 55317; or (ii) via first class or air mail or overnight courier, and are deemed given upon receipt.
Please Continue Reading TVNOW.me Member Agreement(ii)....
16. Confidential Information
During the term of this Agreement, You may receive confidential information from TVNOW.me 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 TVNOW.me. 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 TVNOW.me: (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 TVNOW.me 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 TVNOW.me 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 TVNOW.me Products and the TVNOW.me Membership Program; (ii) click-through or Advertising Action rates, conversion rates and other statistics relating to the TVNOW.me Products and the TVNOW.me Membership Program; and (iii) Trial Features or any other information designated in writing by TVNOW.me as "Confidential" or an equivalent designation. 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 TVNOW.me's confidential information; or (z) You rightfully obtain from a third party without disclosure restrictions.
17. Representation & Warranties
(a) Your Authority. You represent and warrant to TVNOW.me that: (i) You have all requisite power and authority, corporate or otherwise, to enter into this Agreement, to 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 Video Content (if You are a Content Producer), and Your Member Comments (if You are a Network 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; and (vii) You will Participate solely for the purposes intended and expressly permitted.
(b) Your Materials. You represent and warrant that Your Video Content, Your Member Comments or any other information or material You submit or make available to others during Your Participation, and TVNOW.me'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 TVNOW.me Products or Participation in the TVNOW.me Membership 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 Video Content 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 TVNOW.me Membership Program or disable, damage or erase any portion of the Video Content or Ads processed or stored therein; or (viii) do not constitute unsolicited bulk email, junk mail, spam or chain letters.
(c) 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 TVNOW.me Products or the TVNOW.me Membership Program through any means not intentionally made available by TVNOW.me to You, or attempt to gain unauthorized access to TVNOW.me's database, technology, computer systems or networks associated with the TVNOW.me Products or the TVNOW.me Membership Program; or (ii) engage in any activity that disrupts, diminishes the quality of, interferes with the performance of or impairs the functionality of the TVNOW.me Products and the TVNOW.me Membership Program.
(d) Cooperation. You agree to cooperate fully with TVNOW.me to investigate any suspected or actual activity that is in breach of this Agreement. You acknowledge that any violation of this Section 17 ("Representations and Warranties") is a material breach of this Agreement and that TVNOW.me 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. TVNOW.me reserves the right to investigate, at its own discretion, any activity that TVNOW.me suspects may violate this Agreement. TVNOW.me 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 TVNOW.me, 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 TVNOW.me; or (ii) suspects that Your actions may be illegal or cause liability.
The TVNOW.me Products and the TVNOW.me Membership Program may provide, or third parties may provide, links to other websites or resources. Because TVNOW.me has no control over such sites and resources, You acknowledge and agree that TVNOW.me 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 TVNOW.me 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.
You will indemnify, defend and hold TVNOW.me 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 "TVNOW.me 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 Video Content (if You are a Content Producer), Your Member Comments (if You are a Network Member) or any other information or material You submit during Participation; (iii) Your conduct, including Your use of TVNOW.me 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 TVNOW.me Entities. TVNOW.me shall have the right to withhold any payments due to You, if any, to offset liabilities and expenses covered hereunder. TVNOW.me shall have the right, in its sole discretion, to select its own legal counsel to defend TVNOW.me from any Claims (but by doing so shall not excuse Your indemnity obligations) and You shall be solely responsible for the payment of all TVNOW.me's reasonable attorneys' fees incurred in connection therewith. You shall notify TVNOW.me immediately if You become aware of any actual or potential claims, suits, actions, allegations or charges that could affect Your or TVNOW.me'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 TVNOW.me, 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 TVNOW.me.
20. No Guarantees; Warranty Disclaimer
(a) No Guarantees. TVNOW.me makes no guarantees: (i) regarding the availability, operation, maintenance, timing or delivery of the TVNOW.me Products, the TVNOW.me Membership 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 Video Content or Ads will be distributed in the TVNOW.me Movie Network; (iv) regarding the relevancy of any Ads to Video 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 Video Content.
(b) Warranty Disclaimers. Your use of the TVNOW.me Products and Participation in the TVNOW.me Membership Program are at Your sole discretion and risk. The TVNOW.me Products and the TVNOW.me Membership 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 TVNOW.ME ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE TVNOW.ME PRODUCTS AND THE TVNOW.ME MEMBERSHIP 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 TVNOW.me Entities disclaim any warranties: (i) regarding the security, accuracy, reliability, timeliness and performance of the TVNOW.me Products or the TVNOW.me Membership Program; (ii) regarding the goods, services, advise, information or links provided by any third party services providers, Content Producers, sponsors, syndicators or Network Members; (iii) that the TVNOW.me Products or the TVNOW.me Membership Program will meet Your requirements; or (iv) that the TVNOW.me Products or the TVNOW.me Membership Program will be error-free or that any errors will be corrected. No advice or information, whether oral or written, obtained by You from TVNOW.me or from Your Participation, shall create any warranty not expressly stated in this Agreement.
TVNOW.me 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 TVNOW.me Products or the TVNOW.me Membership 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 TVNOW.me be responsible for any loss or damage, including personal injury or death, resulting from Participation, from any Video Content, Ads or Member Comments posted on or through the TVNOW.me Products or the TVNOW.me Membership Program, or from the conduct of any users of the TVNOW.me Products or Participation in the TVNOW.me Membership Program, whether online or offline.
Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to You.
21. Limitation of Liability
THE TVNOW.ME 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 TVNOW.ME PRODUCTS, YOUR PARTICIPATION IN THE TVNOW.ME MEMBERSHIP PROGRAM OR USE OF ANY MATERIALS AVAILABLE TO YOU FROM OR THROUGH THE TVNOW.ME MEMBERSHIP PROGRAM (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT TVNOW.ME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TVNOW.ME'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 TVNOW.ME FOR THE TVNOW.ME PRODUCTS OR PARTICIPATION IN THE TVNOW.ME MEMBERSHIP PROGRAM.
You acknowledge that TVNOW.me 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. TVNOW.me shall have 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 TVNOW.me's infrastructure or connectivity to the Internet, or failure of any third party distribution partner, (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, TVNOW.me will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues.
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.
(a) Governing Law; Arbitration. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. 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 American Arbitration Association or its successor ("AAA") and decided by binding arbitration, in accordance with the AAA's rules and procedures 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 Minnesota 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 Hennepin County, Minnesota, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. In t