Terms AND Conditions of use

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING OR OBTAINING ANY MATERIALS, INFORMATION, PRODUCTS OR SERVICES THROUGH THIS SITE. eefoof, Inc. ("eefoof”) offers access to and use of www.vume.com (together with eefoof, “VuMe”) to you (“You”, “Your”), subject to Your acceptance of these terms and conditions ("Terms"). These Terms describe the terms and conditions by which VuMe offers You participation in its video distribution and advertising program and related services (the “VuMe Programs”). By accessing, using or obtaining any content, data, materials, information, products or services through VuMe, You agree to observe these Terms and represent and warrant to VuMe that You are at least 18 years of age, possess legal parental or guardian consent or are otherwise capable of entering into and performing legal agreements. In any case, You affirm that You are over the age of 13, as the VuMe website is not intended for children under 13. If You are under 13 years of age, please do not use VuMe. If You do not accept all of these Terms, then please leave VuMe immediately. These Terms are effective as of September 1, 2007.

1. VUME NETWORK. VuMe owns, develops and maintains a network (the “Network”) of video, advertisements and other content (collectively, “Content”) creators (each, a “Publisher”) and advertisers (each, an “Advertiser”) who advertise through the Network and related technologies that facilitate the distribution of such Content including advertisements (“Advertisements”). VuMe makes, or may make, the Network available through one or more different distribution channels (the “VuMe Service”), including without limitation, through the VuMe website. The Network shall include any media format and any media channel, whether currently in existence or created in the future including, without limitation, the internet, broadcast television, cable, mobile device and satellite.

2. REGISTRATION. Registration is not required to use many features of the VuMe Service. However, You are required to register if You wish to post a comment or upload Content, or view certain Content and to advertise on the Network. If You wish to upload a video You will be subject to our Publisher Terms. To register, You will have to create an account. As a condition to using such components of the VuMe Service, You will be asked to register with VuMe and select a password and screen name ("VuMe User ID"). You shall provide VuMe with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of these Terms, which may result in immediate termination of Your VuMe account. You may not (i) select or use as a VuMe User ID a name of another person with the intent to impersonate that person; (ii) use as a VuMe User ID a name subject to any rights of a person other than You without appropriate authorization; or (iii) use as a VuMe User ID a name that is otherwise offensive, vulgar or obscene. VuMe reserves the right to refuse registration of, or cancel a VuMe User ID in its sole discretion. You are solely responsible for the activity that occurs on Your account, and You must keep Your account password secure. You must notify VuMe immediately of any breach of security or unauthorized use of Your account. Although VuMe will not be liable for Your losses caused by any unauthorized use of Your account, You may be liable for the losses of VuMe or others due to such unauthorized use.

3. YOUR REPRESENTATIONS AND WARRANTIES. You specifically represent and warrant that (i) Your Content and the distribution and/or publication of Your Content (including Advertisements) through the Network or through and/or by any affiliate or partner of VuMe, directly or indirectly, does not, and shall not, (A) infringe or misappropriate the rights of any third party, nor shall doing so violate any right of any person, (B) contain Adult Content (as defined in Section 12 below), (C) be fraudulent, misleading, hateful, tortuous, defamatory, slanderous, libelous, abusive, violent, threatening, profane, vulgar or obscene, (c) 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 Network, (d) 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), (e) be illegal, unlawful or contrary to the laws or regulations in any state or country where, as applicable, Your Content is created, displayed or accessed, (f) 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 the Network or disable, damage or erase any portion of the Content processed or stored therein, or (g) constitute unsolicited bulk email, junk mail, spam or chain letters; (ii) 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; and (iii) 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. You further represent that You have paid all license fees and/or other fees required to be paid to third parties for performance of Your obligations or exercise of Your rights hereunder, for the grant of the licenses hereunder and for any other act by You under these Terms ("Third Party Fees"), and You covenant to timely pay any and all Third Party Fees required to be paid in the future for such actions. You further expressly agree that, as between You, on the one hand, and VuMe and its affiliates, subsidiaries and distribution partners on the other hand, any obligation to pay Third Party Fees as a result of distribution of Your Content pursuant to these Terms shall be Your obligation and not the obligation of VuMe or any of its affiliates, subsidiaries or partners.

4. PUBLISHERS. You are solely responsible for all Content You transmit or submit to the Network, 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. VuMe disclaims all liability relating to Your Content. You are strictly prohibited from uploading to VuMe any material that contains any virus, worm, "trojan horse", time bomb, adware, spyware, or similar contaminating or destructive feature. Violators may be prosecuted to the maximum extent of the law. VuMe may, in its sole discretion: (i) reject, suspend access to or remove any of Your Content from the Network at any time that VuMe deems it unsuitable for the Network; and (ii) modify any meta data You submit with Your Content, including without limitation meta tags, age rating, descriptive language, search terms, category and keyword modifiers. VuMe shall have no liability for taking such actions. You agree and accept that VuMe does not guarantee that Your Content will be distributed on any part of the Network. You may request that VuMe remove any or all of Your video Content (“Video Content”) from VuMe. Upon such request, Your right to receive compensation, if any, for the removed Video Content will automatically terminate. VuMe will use reasonable efforts to ensure the Video Content is removed from VuMe within seventy-two (72) hours following Your request. However, You acknowledge and agree that VuMe shall have no obligation to attempt to remove from distribution: (i) any of Your Video Content that is otherwise publicly available through the Internet or other publicly accessible medium; or (ii) any of Your Video Content that is distributed by persons or entities other than VuMe on the Network or their end users without monetary compensation or commercial purposes. In the event that VuMe fails to remove such requested Video Content from VuMe within seventy-two (72) hours after Your request for removal, VuMe shall not be liable to You for damages or charges of any kind in an amount greater than $10.

5. ADVERTISERS. If You are an Advertiser, You are solely responsible for all Content contained in any Advertisement submitted by You to the Network, 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. VuMe disclaims all liability relating to Your Advertisements. In connection with VuMe's marketing and distribution of the Network, You permit VuMe to: (x) tag Your Advertisement with information that will be used by VuMe to identity it as Your Advertisement and assist VuMe in properly tracking and calculating any revenue amounts that You may owe to VuMe; (y) associate Your Advertisement with Content, and (z) distribute, or have distributed, Your Advertisement in the Network. VuMe may, in its discretion, reject, suspend access to or remove any of Your Advertisements from the Network at any time. You agree and accept that distribution of Your Advertisements on any part of the Network may be subject to acceptance by any applicable third party service providers.

6. REVENUE AND PAYMENT TERMS.

6.1 Publishers. You may be able to generate revenue as a Publisher, through valid, end user activity relating to Video Content and related Advertisements. Such activity could include for example, without limitation, full Video Content views or clicks on an Advertisement, conversion of an Advertisement click to a sale, or delivery of an Advertisement impression displayed in connection with Video Content (collectively, "Advertising Actions"). Subject to Your compliance with the terms and conditions of these Terms, and depending on the distribution channels (and associated revenue structure, if any) made available to and selected by You, VuMe will pay You $1 CPM as a result of valid Advertising Actions generated in connection with Your Video Content distributed in the Network; provided, that no such payment will be made to You for any Adult Content. You understand and agree in the event Your Video Content is distributed on portions of the Network other than the VuMe website, such distribution may not generate revenue for You.

6.2 Advertisers. The method of calculating fees Advertisers owe VuMe will be set forth in a separate document between the Advertiser and VuMe.

6.3 Payment Terms. Amounts due to You as a Publisher, if any, will be determined solely by VuMe based on Advertising Action data—regarding impressions, clicks, conversions and other applicable metrics—collected by and/or supplied to VuMe. Payments earned as a result of valid Advertising Actions will accrue and be posted to Your account. All payments will be made in U.S. Dollars. Generally, accrued payments will be available for withdrawal or transfer 30 days after the end of the calendar month in which they accrued. VuMe will not be liable for damages resulting from any failure to post payments to Your account within such 30 day period. Notwithstanding the foregoing, VuMe shall make no payments until such accrued payments total at least $25. You will not be entitled to receive interest on any account payments. Except as contemplated by subsection 6.4 below, payments will remain in Your account until: (x) You transfer such amounts to a payment system acceptable to VuMe; (y) You direct VuMe in writing to distribute such payments to a designated payment system acceptable to VuMe, or (z) VuMe terminates Your account. Currently, the only payment system acceptable to VuMe is PayPal, but will likely include other payment systems in the future. If You dispute VuMe's payments made to You under this Agreement, You must notify VuMe in writing within the later of (i) 30 days of VuMe depositing such payment to Your account or (ii) 30 days of the Advertising Actions the claimed payment is based upon. Failure to notify VuMe in this manner will result in Your waiver of any claim relating to such dispute. VuMe will use reasonable efforts to resolve any such dispute in good faith, but VuMe'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 in the Network. For the purposes of checking credit, effecting payment and/or servicing Your account, VuMe may share with third parties, such as payment processors and/or credit agencies, any credit card and related payment information that You provide.

6.4 Exceptions. VuMe 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 VuMe in its sole discretion to have resulted from: (i) Ad Fraud (as defined 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 to click on Advertisements, or actions co-mingled with a significant number of invalid Advertising Actions; (ii) Advertising Actions originating on Content that breaches these Terms; or (iii) fraudulent, misleading or false activities. VuMe reserves the right to withhold or deduct payment, if applicable, or suspend or otherwise disable Your account, pending VuMe's reasonable investigation of any of the foregoing or any breach of these Terms by You. You will not, and will not authorize any party to, directly or indirectly, generate automated, fraudulent or otherwise invalid Advertising Actions. If, in VuMe'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 Advertisement, 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 Advertisement for the purpose of generating an improper click value and generating revenue (collectively, "Ad Fraud"), VuMe may suspend or otherwise disable Your account until such time as the matter is resolved to VuMe's satisfaction.

7. OWNERSHIP. Each party retains any and all pre-existing right, title and interest in and to its website/s, intellectual property, including copyrights and trademarks, technology, content and all components thereof, in whole or in part. Accordingly, You own Your Content, and VuMe owns the VuMe Programs and the Network. These Terms shall not be construed in any manner as transferring any rights of ownership of or license to the foregoing, and/or to the features or information therein, except as expressly set forth in these Terms. Under no circumstances will these Terms be construed as granting, by implication, estoppel or otherwise, a license to any intellectual or other property or components thereof other than as specifically granted in these Terms.

7.1 VuMe. VuMe, along with its service and information providers ("Providers"), own and have copyrights on VuMe and all of its contents. You will not copy, reproduce, republish, upload, post, transmit, distribute, sell, transfer or modify any of the content, data, information or materials found on VuMe, but You may download, display and print one copy of the materials presented on VuMe on a single computer for Your personal, non-commercial use. Trademarks, logos and service marks displayed on VuMe ("Marks") are VuMe’s, and its Providers’, registered and common law Marks. Your use of and access to VuMe do not grant You any license or right to use any of the Marks. You will not use any robot, spider, other automatic device, or manual process to monitor materials available through VuMe. All software, applications, and modules used on VuMe are proprietary to VuMe or licensed to VuMe by other parties. You may not reproduce, reverse engineer, create derivative works of, reverse assemble or reverse compile, sell, lease, distribute, rent, assign, transfer, or modify any software on VuMe.

7.2 Publishers. You hereby grant VuMe a limited, non-exclusive, worldwide, revocable, sublicensable license to perform such acts in connection with Your Content as are reasonably necessary to conduct the VuMe Programs and maintain the Network. Specifically, the foregoing license includes, without limitation, permission for VuMe, to: (i) publicly display, publicly perform, transmit, distribute, copy, store, reproduce and/or provide Your Content on or through the Network, either in its original form, copy or in the form of an encoded work; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms based on Your Content; (iii) distribute, transmit, and/or display Your Content and encoded works via such technologies as are supported by VuMe from time to time; and (iv) display Advertisements in connection with any display of Your Content and encoded works.

8. PRIVACY POLICY. You hereby represent and warrant that You own or have the right to submit all information You send to VuMe. Your use of VuMe is subject to its Privacy Policy (the “Privacy Policy”). You represent and warrant that You have read the Privacy Policy and it is reasonable and acceptable to You. Your acceptance of these Terms is also Your consent to the information practices in our Privacy Policy.

9. COPYRIGHT POLICY. You hereby represent and warrant that You own or have the right to submit all information You send to VuMe. Your use of VuMe is subject to its Copyright Policy (the “Copyright Policy”). You represent and warrant that You have read the Copyright Policy and it is reasonable and acceptable to You. Your acceptance of these Terms is also Your consent to the copyright practices in our Copyright Policy.

10. LINKS. VuMe may contain links to other sites that VuMe does not operate or control. VuMe is not responsible for these other sites. VuMe provides these links for Your reference and convenience. VuMe does not endorse the contents of these other sites. These links are not an indication of VuMe’s association with the owners or operators of any of these other sites or its endorsement of any material on those sites. You are free to access these other sites, but You do so at Your own risk. By using VuMe, You expressly relieve VuMe from any and all liability from Your use of any third-party sites. You agree not to create a link from any site, including any site controlled by You, to VuMe without its express, written permission.

11. PARTICIPATION AT YOUR OWN RISK. Your participation in the Network is at Your own risk. Although the Network enables users to connect and share Content with one another and with end users or viewers, VuMe has no responsibility to control or monitor any information or exchanges between or among users. VuMe does not control the Content (including, without limitation, Advertisements) made available through the Network. Some people may find Content on VuMe objectionable, inappropriate or offensive. VuMe does not control or guarantee, nor is VuMe responsible for, the truth, accuracy, ownership, completeness, integrity, safety, timeliness, quality, appropriateness, legality or applicability of any Content. VuMe assumes no responsibility for monitoring any Content or VuMe user conduct. If VuMe chooses, at any time in its sole discretion, to monitor (in whole or in part) Content or VuMe user conduct, VuMe nonetheless assumes no responsibility for Content, no obligation to modify or remove any Content and no responsibility for VuMe user Conduct. You agree that VuMe has no responsibility or liability for the deletion or failure to store, maintain or transmit any Content.

12. ADULT CONTENT. You will not use VuMe 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 VuMe any Content, that is of, or is suggestive of, a sexual, pornographic or erotic nature ("Adult Content") including, without limitation, material that is pornographic, obscene, indecent or profane in its use of sexual language or description or depictions of sexual acts. If VuMe finds Content that it determines, in its sole discretion, contains Adult Content, VuMe may, without notice, remove or block access to such Content. VuMe reserves the right to suspend or cancel at any time and without notice Your account, or deduct or withhold payments related to any Content, that VuMe, in its sole discretion, determines to be in violation of this Section.

13. WARRANTY DISCLAIMER. VUME MAKES NO, AND ITS PROVIDERS MAKE, NO WARRANTY OF ANY KIND REGARDING VUME AND/OR ANY CONTENT, DATA, MATERIALS, INFORMATION, PRODUCTS OR SERVICES PROVIDED ON VUME, ALL OF WHICH ARE PROVIDED ON AN "AS IS" BASIS. VUME EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY THAT VUME WILL BE ERROR-FREE, SECURE OR UNINTERRUPTED. VUME FURTHER DISCLAIMS ANY WARRANTY AS TO THE ACCURACY, COMPLETENESS AND TIMELINESS OF ANY CONTENT OR INFORMATION FOUND ON VUME. VUME EXPRESSLY DISCLAIMS AND ITS PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, INCLUDING IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THIS WARRANTY DISCLAIMER MAY BE LIMITED IN ITS APPLICABILITY TO YOU. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. VUME, ITS AFFILIATES, AND/OR THEIR RESPECTIVE SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES ON VUME AT ANY TIME.

14. LIMITATION OF LIABILITY. VUME WILL NOT BE, AND ITS PROVIDERS WILL NOT BE, RESPONSIBLE OR LIABLE FOR (A) ANY DAMAGES TO OR VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY AS THE RESULT OF YOUR ACCESS TO, USE OF OR BROWSING IN VUME OR YOUR DOWNLOADING OF ANY CONTENT, INFORMATION, MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM VUME OR (B) ANY INJURY, LOSS, CLAIM, DAMAGE, OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOST SAVINGS), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH (I) ANY USE OF OUR SITE OR CONTENT, DATA, MATERIALS OR INFORMATION FOUND THEREIN, (II) ANY FAILURE OR DELAY (INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE ANY COMPONENT OF VUME FOR PURCHASES), OR (III) THE PERFORMANCE OR NON PERFORMANCE BY VUME OR ANY PROVIDER, EVEN IF VUME HAS BEEN OR A PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES TO SUCH PARTIES OR ANY OTHER PARTY. This disclaimer of liability applies to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of record, whether for breach of contract, tortious behavior, negligence, or under any other cause of action.

15. DOLLAR LIMITATION. If, despite the limitations in Sections 13 and 14 above, VuMe or a Provider is found liable for any loss or damage which arises out of or is in any way connected with any of the occurrences described in such Sections, then VuMe’s liability and the Providers’ liability will in no event exceed, in total US$100. Some states do not allow the limitation of liability, so the limitations above may not apply to You. Such limitations on liability are in addition to, and not in lieu of, any limitations on liability set forth in any other agreement between You and VuMe.

16. INDEMNIFICATION. You will defend and indemnify VuMe and any Provider and each of the foregoing parties’ respective officers, directors, employees and agents from and against any claim, cause of action or demand, including without limitation reasonable legal and accounting fees, brought by You or on Your behalf in excess of the liability described above or by third parties as a result of Your breach of these Terms or the documents made part of these Terms by reference, Your violation of any law or the rights of a third party or Your use of VuMe or the Network.

17. GENERAL.

17.1 Headings; No Joint Venture; Assignment. The headings in these Terms are for Your convenience and reference only. Such headings do not limit or affect these Terms. Your acceptance of these Terms and use of VuMe do not create a joint venture, partnership, employment or agency relationship with VuMe. You may not assign, delegate or transfer Your rights or obligations under these Terms. However, VuMe may assign these Terms.

17.2 Modification. VuMe may modify these Terms at any time. Your continued use of VuMe, following any modification of these Terms, will be subject to the Terms in effect at the time of Your use. You will review these Terms periodically. Your continued use of VuMe, following any modification, will be Your acceptance of the modified Terms. Except as described in the preceding sentences, You and VuMe can only modify these Terms in a written document signed or otherwise accepted by You and by us.

17.3 Other Terms; Breach. Other terms and conditions may apply to Your purchases of advertising services and products through VuMe and to Your use of other portions of VuMe. You will observe these other terms and conditions. If VuMe fails to act with respect to Your breach or anyone else’s breach of these Terms or any other terms and or conditions on any occasion, VuMe is not waiving its right to act with respect to future or similar breaches.

17.4 Severability; Entire Agreement. If a court finds any provision of these Terms to be unenforceable or invalid, that provision will be enforced to the fullest extent permitted by applicable law and the other Terms will remain valid and enforceable. These Terms, together with those items made a part of these Terms by reference, make up the entire agreement between VuMe and You relating to Your use of VuMe, and replaces any prior understandings or agreements (whether oral or written) regarding Your use of VuMe.

17.5 Jurisdiction; Governing Law; Legal Fees; Statute of Limitations; Electronic Documents. You agree that: (i) VuMe shall be deemed solely based in the State of California (USA); and (ii) VuMe shall be deemed a passive website that does not give rise to personal jurisdiction over VuMe, either specific or general, in jurisdictions other than the State of California (USA). The laws of the State of California (USA), without regard to its conflict of laws rules, will govern these terms and conditions, as well as Your and our observance of them. If You take any legal action relating to Your use of VuMe or these Terms, You agree to file such action only in the state and federal courts located in San Diego, California (USA). In any such action or any action VuMe may initiate, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to costs, both taxable and non-taxable, and reasonable attorneys’ fees. YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO VUME MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.