This Terms of Service ("TOS") is a legally binding agreement made by and between New Media Broadcasting Company, Inc. ("NewMBC") and you, personally and, if applicable, on behalf of the entity for whom you are using this web site (collectively, "you"). This TOS governs your use of MashCast.net.com ("Web Site") and the services offered by NewMBC on the Web Site ("Services"), so please read them carefully.
BY CHECKING THE "ACCEPT TERMS AND CONDITIONS OF USE" BOX OR BY ACCESSING OR USING ANY PART OF THE WEB SITE, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS TOS. IF YOU DO NOT AGREE TO BE SO BOUND, DO NOT ACCESS OR USE THE WEB SITE.
INTERNET TECHNOLOGY AND THE APPLICABLE LAWS, RULES AND REGULATIONS CHANGE FREQUENTLY. ACCORDINGLY, NEWMBC RESERVES THE RIGHT TO MAKE CHANGES TO THIS TOS AT ANY TIME. YOUR CONTINUED USE OF THE WEB SITE CONSTITUTES ASSENT TO ANY NEW OR MODIFIED PROVISION OF THIS TOS THAT MAY BE POSTED ON THE WEB SITE.
1. Using The Web Site.
(a) Eligibility. Except as expressly provided below, Services may only be used by, and Membership is limited to, individuals who can form legally binding contracts under applicable law. Without limitation, minors are prohibited from becoming Members and, except as specifically provided below, using fee-based Services.
(b) Compliance. You must comply with all of the terms and conditions of this TOS, the policies referred to below, and all applicable laws, regulations and rules when you use the Web Site.
(c) License and Restrictions. Subject to the terms and conditions of this TOS, you are hereby granted a limited, non-exclusive right to use the content and materials on the Web Site in the normal course of your use of the Web Site. You may not use any third party intellectual property without the express written permission of the applicable third party, except as permitted by law. NewMBC will retain ownership of its intellectual property rights and you may not obtain any rights therein by virtue of this TOS or otherwise, except as expressly set forth in this TOS. You will have no right to use, copy, display, perform, create derivative works from, distribute, have distributed, transmit or sublicense from materials or content available on the Web Site, except as expressly set forth in this TOS. You may not attempt to reverse engineer any of the technology used to provide the Services.
(d) Prohibited Conduct. In your use of the Web Site and the Services, you may not: (i) infringe any patent, trademark, trade secret, copyright, right of publicity or other right of any party; (ii) defame, abuse, harass, stalk any individual, or disrupt or interfere with the security or use of the Services, the Web Site or any web sites linked to the Web Site; (iii) interfere with or damage the Web Site or Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology; (iv) attempt to use another user's account, impersonate another person or entity, misrepresent your affiliation with a person or entity, including (without limitation) NewMBC or create or use a false identity; (v) attempt to obtain unauthorized access to the Web Site or portions of the Web Site that are restricted from general access; (vi) engage, directly or indirectly, in transmission of "spam," chain letters, junk mail or any other type of unsolicited solicitation; (vii) collect, manually or through an automatic process, information about other users without their express consent or other information relating to the Web Site or the Services; (viii) use any meta tags or any other “hidden text” utilizing NewMBC’s name, trademarks, or product names; (ix) advertise, offer to sell, or sell any goods or services, except as expressly permitted by NewMBC; (x) engage in any activity that interferes with any third party’s ability to use or enjoy the Web Site or Services; or (xi) assist any third party in engaging in any activity prohibited by this TOS.
(e) Other Users. If you become aware of any conduct that violates this TOS, NewMBC encourages you to contact NewMBC Customer Service. NewMBC reserves the right, but will have no obligation, to respond to such communications.
2. Membership and Passwords.
(a) Membership. To become a Member, you must create an account with NewMBC through the online registration process on the Web Site. In creating an account, you must provide NewMBC with accurate and complete registration information, as prompted in the registration form. You must promptly notify NewMBC if any of this information changes. If you fail to provide or update this information, NewMBC may terminate your right to use the Web Site or the Services.
(b) Passwords. When you open your account, you will be asked to choose a password. You must keep your password confidential. You will be responsible for all use of your password and account, including, without limitation, any use by any unauthorized third party. You must notify NewMBC immediately if you believe your password or account has been obtained or may be accessed or used by any unauthorized person or entity. In addition, you must notify NewMBC immediately if you become aware of any other breach or attempted breach of the security of the Web Site. For security purposes, NewMBC recommends that you change your password often. Under no circumstances should you respond to a request for your password, particularly a request from an individual claiming to be an employee of NewMBC. NewMBC’s employees will never ask for your password. You must notify NewMBC if you receive such a request.
(a) Payment. You must pay for your use of the Services in accordance with the instructions provided on the Web Site.
(b) Non-Refundable. All payments you make to NewMBC are non-refundable.
(c) Taxes. You will solely be responsible for all taxes arising from, relating to or connected with your use of the Web Site or Services, except for taxes relating to NewMBC’s income. NewMBC will have the right to charge your credit card for any taxes that it is required to pay or in fact collects.
5. Your Content.
(a) License. By posting, storing or transmitting any content on or to the Web Site, you hereby grant NewMBC a perpetual, worldwide, non-exclusive, royalty-free, sublicensable, right and license to use, copy, display, perform, create derivative works from, distribute, have distributed, transmit and sublicense such content in any form, in all media now known or hereinafter created, anywhere in the world. You hereby irrevocably waive any claims based on moral rights, if any.
(b) Objectionable Content. NewMBC does not have the ability to control the nature of the content offered through the Web Site. You are solely responsible for your interactions with other users of the Web Site (including, without limitation, the members of MashCast Inc.) and any content that you post. NewMBC will not be liable for any damage or harm resulting from any content or your interactions with other users of the Web Site. NewMBC reserves the right, but has no obligation, to monitor interactions between you and other users of the Web Site and take any other action to restrict access to or the availability of any material that we or another user of the Web Site may consider to be obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable (including, without limitation, because it violates this TOS).
6. Our Content.
(a) Copyright. All materials on the Web Site and available through the Services, including without limitation, the logos, design, text, graphics, audio clips, video clips, other files, and the selection, arrangement and organization thereof are owned by NewMBC, MashCast Inc., Inc., its licensors or other entities. Unauthorized use of such materials is strictly prohibited. Copyright © 2006 New Media Broadcasting Company, Inc. ALL RIGHTS RESERVED.
(b) Trademarks. Product names, logos, designs, titles, and words or phrases used on any NewMBC web site, including, without limitation, MashCast.net, NewMBC, and MashCast Inc. design marks are owned by NewMBC, MashCast Inc., its licensors or other entities. All page headers, custom graphics, button icons and scripts are trademarks or trade dress of NewMBC. If you use such trademarks or logos, you must include appropriate attribution. All other trademarks, trade names and the like that appear on the Web Site or the Services are the property of their respective owners. You may not use any of these trademarks, trade dress, or trade names without express permission.
7. Intellectual Property Policy. NewMBC respects the intellectual property rights of others and expects its users to do the same. NewMBC may remove content that in its sole discretion appears to infringe the intellectual property rights of others. In addition, NewMBC will terminate the accounts of users who infringe the intellectual property rights of others. If you believe that a user of the Web Site or the Services has infringed your intellectual property rights, please notify NewMBC’s Intellectual Property Agent, and provide the following information:
(a) A physical or electronic signature of the person authorized to act on behalf of the owner of the intellectual property right.
(b) An identification of the intellectual property claimed to have been infringed.
(c) A detailed description of the material that you claim is infringing, so that we may locate it, including the URL where the infringing material appears.
(d) Your address, telephone number, and email address.
(e) A statement by you that you have a good faith belief that the allegedly infringing use is not authorized by the intellectual property rights owner, its agent, or the law.
(f) A statement, made under penalty of perjury, by you that the above information is accurate and that you are authorized to act on behalf of the owner of the intellectual property rights involved.
NewMBC’s Intellectual Property Agent can be reached at:
New Media Broadcasting Company
3211 San Gabriel Avenue
Glendale, California 91208
Phone: (818) 545-0304
Fax: (818) 236-2808
8. Linking and Framing. You may not frame, inline link, or similarly display any NewMBC content or property, including, without limitation, the Web Site. You may not use any NewMBC or MashCast Inc., Inc. trademarks as part of a link without express written consent.
9. Representations and Warranties. You represent and warrant to NewMBC that: (i) you have the full power and authority to enter into and perform your obligations under this TOS; (ii) your assent to and performance of your obligations under this TOS does not constitute a breach of or conflict with any other agreement or arrangement by which you are bound, or any applicable laws, regulations or rules; (iii) this TOS constitutes legal, valid and binding obligations on you, enforceable in accordance with its terms and conditions; (iv) you will not infringe the patent, copyright, trademark, trade secret, right of publicity or other intellectual property or proprietary right of any third party in your use of the Web Site or the Services; and (v) you will comply with all applicable laws, rules and regulations in your use of the Services and the Web Site, including this TOS.
10. Indemnification. You agree to hold NewMBC and its employees, representatives, agents, attorneys, affiliates, directors, officers, members, managers and shareholders ("Indemnified Parties") harmless from any damage, loss, cost or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third party claim, demand or action ("Claim") brought or asserted against any of the Indemnified Parties: (i) alleging facts or circumstances that would constitute a breach of any provision of this TOS by you or (ii) arising from, related to, or connected with your use of the Web Site or the Services. If you are obligated to provide indemnification pursuant to this provision, NewMBC may, in its sole and absolute discretion, control the disposition of any Claim at your sole cost and expense. Without limiting the foregoing, you may not settle, compromise or in any other manner dispose of any Claim without the consent of NewMBC.
11. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS.
(a) DISCLAIMER OF WARRANTIES. NEWMBC PROVIDES THE WEB SITE AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEWMBC DOES NOT REPRESENT OR WARRANT THAT THE WEB SITE OR SERVICES OR THEIR USE (I) WILL BE UNINTERRUPTED OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. NEWMBC MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
(b) EXCLUSION OF DAMAGES. NEWMBC WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE WEB SITE OR SERVICES, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.
(c) LIMITATION OF LIABILITY. IN NO EVENT WILL THE LIABILITY OF NEWMBC IN CONNECTION WITH THIS TOS, THE WEB SITE OR SERVICES EXCEED THE GREATER OF (I) THE AMOUNT PAID BY YOU TO NEWMBC DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (II) $100.
12. Force Majeure. NewMBC will not be liable for failing to perform under this TOS by the occurrence of any event beyond its reasonable control, including, without limitation, a labor disturbance, an Internet outage or interruption of service, a communications outage, failure by a service provider to NewMBC to perform, fire, terrorism, natural disaster or war.
13. Arbitration. All disputes arising out of or relating to this TOS (including its formation, performance or alleged breach) or your use of our Services or the Web Site will be exclusively resolved under confidential binding arbitration held in Los Angeles, California before and in accordance with the Rules of the American Arbitration Association. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this TOS will be joined to an arbitration involving any other party subject to this TOS, whether through class arbitration proceedings or otherwise. Notwithstanding the foregoing, NewMBC will have the right to seek injunctive or other equitable relief in state or federal court located in Los Angeles, California to enforce these terms or prevent an infringement of a third party’s rights. In the event equitable relief is sought, each party hereby irrevocably submits to the personal jurisdiction of such court.
14. WAIVER OF CLASS ACTION RIGHTS. BY ENTERING INTO THIS TOS, YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO JOIN CLAIMS WITH THOSE OF OTHERS IN THE FORM OF A CLASS ACTION OR SIMILAR PROCEDURAL DEVICE. ANY CLAIMS ARISING OUT OF, RELATING TO, OR CONNECTED WITH THIS TOS MUST BE ASSERTED INDIVIDUALLY.
15. Limitation of Actions. You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, relating to, or connected with your use of the Web Site or Services, must be filed within one calendar year after such claim or cause of action arises, or forever be barred.
16. Changes to the Web Site or Service. NewMBC may, in its sole discretion, change, modify, suspend, make improvements to or discontinue any aspect of the Web Site or the Services, temporarily or permanently, at any time without notice to you, and NewMBC will not be liable for doing so. Without limiting the foregoing, and notwithstanding anything contained in this TOS, NewMBC will have the right from time to time to change the amount of the fees or institute new fees relating to the Services. Further, NewMBC may impose limits on the amount of storage space for Member web sites, or delete materials: (i) stored for an excessive period of time; (ii) out-of-date materials; or (iii) relating to an inactive Member account. If you do not agree with any changes made to the Web Site you may terminate your account as set forth in Section 17(b).
(a) By NewMBC. NewMBC will have the right in its sole discretion, for any reason or no reason at all, without notice or liability to you or any third party, to terminate your account or your access to the Web Site or Services, with or without cause. Such reasons may include, without limitation: (i) your breach of any part of this TOS, (ii) your violation of the rights of any third party; (iii) the invalidity of your credit card; (iv) your exceeding your credit card limit; (v) "chargeback" of a fee or other payment; or (vi) your membership account becoming inactive for an extended period of time.
(b) By You. If you are a Member, you may terminate your account for any reason at any time by providing notice to NewMBC of your intention to do so, subject to this TOS.
(c) Effect of Termination. If your account is terminated, NewMBC may, in its sole discretion, delete any web sites, files, graphics or other content or materials relating to your use of the Web Site or Services on NewMBC’s servers or otherwise in its possession and NewMBC will have no liability to you or any third party for doing so. Following termination, you will not be permitted to use the Web Site or the Services. If your account or your access to the Web Site or Services is terminated, NewMBC reserves the right to exercise whatever means it deems necessary to prevent unauthorized access to the Web Site or the Services, including, but not limited to, technological barriers, IP mapping and direct contact with your Internet Service Provider (ISP). If your account is terminated, you must immediately pay NewMBC any fees that you owe it. Regardless of whether you have the right to access or use the Web Site or the Services, this TOS will survive indefinitely unless and until NewMBC chooses to terminate it.
18. Notices and Electronic Communications. All notices required by or permitted to be given under this TOS will be in writing and delivered to the other party by any of the following methods: (i) hand delivery, (ii) certified U.S. mail, return receipt requested, postage prepaid, (iii) overnight courier, or (iv) electronic mail. If you give notice to NewMBC, you must use the address shown on the Web Site. If NewMBC provides notice to you, NewMBC must use the contact information provided by you to NewMBC. All notices will be deemed received as follows: (i) if by hand-delivery, on the date of delivery, (ii) if delivery by U.S. Mail, on the date of receipt appearing on a return receipt card, (iii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iv) if by electronic mail, 24 hours after the message was sent, if no “system error” or other notice of non-delivery is generated. Each party agrees that any notice that it receives from the other party electronically satisfies any legal requirement that such communications be in writing.
19. Additional Terms. This TOS contains the entire understanding of you and NewMBC regarding the use of the Web Site, and supersedes all prior and contemporaneous agreements and understandings between you and NewMBC regarding its subject matter. This TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of California without reference to conflict of law principles. This TOS and all of your rights and obligations under them (including, without limitation, your membership, if any) will not be assignable or transferable by you without the prior written consent of NewMBC. No failure or delay by a party in exercising any right, power or privilege under this TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this TOS. You and NewMBC are independent contractors, and no agency, partnership, joint venture, employee-employer relationship is intended or created by this TOS. The invalidity or unenforceability of any provision of this TOS will not affect the validity or enforceability of any other provision of this TOS, all of which will remain in full force and effect.