Content Agreement » |
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BLINKX CONTENT DEMONSTRATION AGREEMENT
IMPORTANT! READ CAREFULLY! BY CLICKING THE ACCEPTANCE BUTTON YOU ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT YOU MUST SELECT THE BUTTON INDICATING NON-ACCEPTANCE AND YOU MUST NOT PROVIDE CONTENT TO BLINKX.
1. LICENCE
Subject to the terms of this Agreement, you grant to blinkx a limited, non-exclusive, royalty free, non-transferable, non-sublicencable licence during the Term (defined below) to use video content you provide to blinkx (the “Clips”), solely for the purpose of making the Clips available to blinkx end users as part of the Service (defined below). As part of this limited license, blinkx shall be permitted to create a phoneme-based transcription of the Clips and/or use pre-existing closed caption transcripts (the “Transcripts”), in both cases to deliver the Service. New and updated Clips provided by you to blinkx shall be considered Clips under this Agreement. blinkx may alter, modify, copy, edit, format, translate and create derivative works of the Clips solely to provide the Service. You hereby grant blinkx the right to place the logo you upload to the blinkx service next to your Clips and within the blinkx channel bar. blinkx agrees to leave unaltered your brand logos as they may appear on the Clips served through the Service.
2. BLINKX SERVICE
The blinkx service allows end users to actively and passively query the blinkx engine for related textual, audio and video content, through the blink web services (available at www.bxfind.com and www.blinkx.tv) and the blinkx software windows client (collectively herein referred to as the “Service”). blinkx agrees to make the Clips available as part of the Service, however blinkx may in its sole discretion reject Clips which are or may reasonably be considered to be obscene, indecent, libellous, pornographic, seditious, offensive, defamatory, threatening, unlawful, harmful, vulgar, liable to incite racial hatred, discriminatory, menacing, blasphemous or in breach of confidence.
3. OWNERSHIP
The Clips, Transcripts, and any copies are licensed and not sold by you and shall remain your property at all times during and after this Agreement. Any use of the Clips or Transcripts by blinkx other than as set forth in this Agreement shall be prohibited.
4. RESTRICTIONS
blinkx agrees that during and after this Agreement it will not provide the Clips or Transcripts as part of any revenue generating service without your prior written consent.
5. TERM AND TERMINATION
(a) This Agreement shall commence on date you provide the Clips to blinkx and continue until either party gives the other 30 days advance written notice of termination (the “Term”). (b) This Agreement may also be terminated immediately by either party by giving written notice to the other if the other: (i) commits any material breach of this Agreement which (in the case of a breach capable of remedy) shall not have been remedied within 10 days after receipt by the breaching party of a notice of breach; or (ii) shall cease conducting business in the normal course or enter in bankruptcy proceedings. (c) Upon termination blinkx will cease use of the Clips and Transcripts and at your request provide you with written confirmation of destruction of the Clips.
6. LIMITED WARRANTY
(a) You warrant to blinkx that you have the right to provide the Clips and licenses to blinkx as contemplated hereunder for distribution. (b) blinkx warrants to you that it has the right to operate the Service as contemplated hereunder.
7. INDEMINIFICATION
blinkx agrees to defend, indemnify, save and hold harmless you and your affiliates from any and all claims resulting from (i) blinkx’ breach of any of its duties, representations or warranties set forth in this Agreement or (ii) any violation by blinkx of any applicable law. You agree to defend, indemnify, save and hold harmless blinkx and its affiliates from any and all claims resulting from (i) your breach of any of your duties, representations, or warranties set forth in this Agreement, (ii) any claim by a third party against blinkx with respect to the copyright or ownership of or rights to the Clips or (iii) any violation by you of any applicable law.
8. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES.
EXCEPT IN THE EVENT OF PERSONAL INJURY OR DEATH AS A RESULT OF NEGLIGENCE, IN NO EVENT SHALL BLINKX BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICE OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF BLINKX, EVEN IF THE LOSS WAS REASONABLY FORESEEABLE OR BLINKX HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER, THE ENTIRE LIABILITY OF BLINNKX UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID TO YOU BY BLINKX OR U.S.$5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
9. PUBLICITY
You agree to cooperate with blinkx in the creation and distribution of a press release relating to this Agreement, provided that no press release shall be made public unless and until the parties agree its content.
10. INDEPENDENT CONTRACTORS
The parties to this Agreement are independent contractors. Neither party is an agent, representative or employee of the other party. Neither party will have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement will not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either party.
11. MISCELLANEOUS
This Agreement is the complete and exclusive statement of the mutual understanding of the parties. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by blinkx. This Agreement shall be governed pursuant to the laws of the State of California without regard to the conflict of laws provisions thereof. The waiver by either party of a breach of this Agreement shall not constitute a waiver of any subsequent breach. The parties agree that a material breach of this Agreement adversely affecting either party’s proprietary rights would cause irreparable injury to that party for which monetary damages would not be an adequate remedy and that the injured party shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law. Sections 3, 6, 7 and 8 shall survive any termination or expiration of this Agreement.
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