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terms and conditions


These Marcellus Service Terms and Conditions, together with any order form, exhibit or attachment hereto, comprise the entire agreement (the "Agreement") by and between Marcellus and the Company identified in the Agreement concerning Company's use, and Marcellus’ provision, of the Marcellus Service.


1. The Marcellus Service.

The "Marcellus Service" is an on-demand, hosted service described at http://mvp.marcellus.tv that enables Company to upload, manage and distribute Company's Content. "Content" means all content, data or information in any form that is uploaded to the Marcellus Service by Company or on Company's behalf. By using the online, publisher service (the "P/S") provided as part of the Marcellus Service, Company may make choices about the presentation, management and distribution of the Content. Company may change Company's selections as permitted by the Marcellus Service. In all cases, however, Company's last selections in the P/S, as reflected in Marcellus’ database, shall be conclusive in the event of any dispute concerning Company's selections.


2. Access to the Service.

Access to Company's Account/s shall be limited by use of username/s and password/s ("Credentials") selected by Company. Company is responsible for all activity occurring in Company's Account/s. Except where Marcellus has actual notice of loss, theft or unauthorized use of Company's Credentials, Marcellus shall have the right, without further inquiry, to rely on provision of Company's Credentials as sufficient to authenticate Company's use of the Marcellus Service.


3. Company's Obligations.

(a) Restrictions on Use

Company covenants and agrees that it will not (i) use the Marcellus Service in any illegal or unlawful manner or for any illegal or unlawful purpose or (ii) perform any act which interferes with or disrupts the Marcellus Service. Marcellus will not review or screen Content on a regular basis for compliance with this Agreement or applicable law, and Marcellus shall have no obligation to do so, provided, however, that in addition to any other right Marcellus may have, Marcellus reserves the right to suspend Company's access to and/or use of the Marcellus Service to the extent that Marcellus determines, in good faith, that such suspension is necessary to comply with applicable law or to prevent significant harm to any end user or the Marcellus Service; provided further, however, that in such event, Marcellus shall only suspend that portion of the Marcellus Service causing such violation and/or harm.


(b) Obligation to Pay

Company shall pay Marcellus the fees set forth on any order form, exhibit, attachment or amendment to the Agreement in accordance with the payment terms set forth therein. Company shall be responsible for and shall pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to the provision of the Marcellus Service (except for taxes on Marcellus’ income). All payments shall be made without deduction for withholding taxes. Late payments may be subject to fees at the rate of 1.5% per month or, if lower, the maximum rate allowed by law. If Company fails to pay fees invoiced by Marcellus within 15 days following the payment due date, then in addition to any other rights Marcellus may have, Marcellus shall have the right to suspend delivery of all or a portion of the Marcellus Service to Company, provided that Marcellus has supplied Company prior notice and 5 days opportunity to cure.


4. Marcellus’ Obligations

Marcellus agrees to (a) operate and make available to Company the Marcellus Service in accordance with this Agreement; and (b) perform any other obligations expressly identified in this Agreement.


5. Term

The term ("Term") of this Agreement shall commence on the Effective Date and, unless earlier terminated in accordance with this Agreement, shall remain in effect for 1 year from the Effective Date (unless a different term is set forth in the order form), following which it shall automatically renew on each anniversary of the Effective Date unless either party hereto has provided notice to the other of non-renewal at least 60 days in advance of the end of the then-current Term.


6. Termination

Either party may terminate this Agreement: (a) if the other party is adjudicated bankrupt or otherwise seeks to avoid its performance obligations under applicable bankruptcy or insolvency laws, or (b) upon the occurrence of a material breach of this Agreement by the other party if such breach is not cured within 30 days after written notice identifying the matter constituting the material breach. In the event of a termination or expiration of this Agreement, all licenses granted under this Agreement shall terminate automatically. Upon an early termination of this Agreement for any reason (other than a termination resulting from a material, uncured breach of this Agreement by Marcellus), all fees and expenses payable under this Agreement shall become immediately due and payable.


7. Title

As between the parties, Marcellus owns all right, title and interest in and to the Marcellus Service. This Agreement does not convey any ownership interest in or to the Marcellus Service to Company, but only a limited license that is revocable as set forth in this Agreement. As between the parties, Company owns all right, title and interest in and to the Content.


8. Licenses

(a) License to Use the Marcellus Service

Subject to the terms and conditions of this Agreement, Marcellus hereby grants Company a limited, revocable (as set forth herein), non-transferable, non-exclusive, worldwide license to use the Marcellus Service. All rights not expressly granted to Company are reserved by Marcellus and its licensors.

Except as expressly permitted by Marcellus or to the extent expressly authorized by the Marcellus Service, Company shall not: (a) sublicense, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Marcellus Service or any part thereof in any way; or (b) modify or make derivative works based upon the Marcellus Service or reverse engineer, decompile or disassemble the Marcellus Service.

(b) License to Content. Subject to the terms and conditions of this Agreement, Company hereby grants Marcellus a limited, revocable (as set forth herein), non-transferable (except as provided herein), non-exclusive, royalty-free, worldwide license to perform all such acts with respect to the Content as are necessary for Marcellus to provide the Marcellus Service in accordance with this Agreement and Company's selections made through the P/S. For avoidance of doubt, although Marcellus shall have the right hereunder to host, store, encode, reproduce and/or distribute the Content (among other things) in order to provide the Marcellus Service in accordance with this Agreement, the parties expressly agree that Marcellus does not hereby take legal title to any Content supplied by Company.

(c) License to Marks. Subject to the terms and conditions of this Agreement, Marcellus grants Company, and Company grants Marcellus, the limited, revocable, non-transferable (except as provided herein), non-exclusive, royalty-free, worldwide right to reproduce and display the other's logos, trademarks, trade names and other similar identifying material (the "Marks"). Any and all use of a party's Marks hereunder shall inure exclusively to the benefit of the owner of the Marks. This Agreement does not convey any ownership interest in or to the other party's Marks, but only a limited license that is revocable as set forth in this Agreement. Marcellus shall only reproduce and display Company Marks that Company uploads into the Marcellus Service and in accordance with Company's selections made through the P/S.


9. Representations and Warranties

(a) The Marcellus Service. Marcellus represents and warrants that it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement.


(b) The Content. Company represents and warrants that (i) it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement; (ii) the Content and its use through the Marcellus Service, as enabled by Company, directly or indirectly, does not, and shall not, infringe, violate or misappropriate any third party's rights; and (iii) it has paid, and it shall be solely responsible for paying, any fees attributable to any and all of the foregoing.


10. Indemnification

Company agrees to indemnify, defend and hold harmless Marcellus and Marcellus’ officers, employees, directors, agents, affiliates, subsidiaries, successors and assigns from and against any and all third party claims, damages, liabilities, costs and expenses (including reasonable attorney's fees and litigation expenses) (each a "Claim"), arising out of or related to any alleged or actual breach of any representation, warranty or covenant made by Company in this Agreement. Marcellus agrees to indemnify, defend and hold harmless Company and Company's officers, employees, directors, agents, affiliates, subsidiaries, successors and assigns from and against any and all third party Claims arising out of or related to any alleged or actual breach of any representation, warranty or covenant made by Marcellus in this Agreement.


11. DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, MARCELLUS MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND TO COMPANY, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE, SUITABILITY, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE MARCELLUS SERVICE IS PROVIDED ON AN "AS IS" BASIS ONLY. NO ADVICE OR INFORMATION OBTAINED BY COMPANY FROM MARCELLUS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.


12. LIMITATIONS/EXCLUSIONS OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE PERFORMANCE OR FAILURE OF PERFORMANCE OF ANY PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES IN EXCESS OF (A) $10,000 OR (B) THE TOTAL VALUE OF PAYMENTS EXPRESSLY IDENTIFIED IN THE AGREEMENT, WHICHEVER OF (A) AND (B) IS GREATER. NOTWITHSTANDING ANY OF THE FOREGOING IN THIS ENTIRE SECTION, THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY IN THE CASE OF (I) BREACHES OF SECTION 3(A) OF THIS AGREEMENT, (II) DAMAGES RESULTING FROM INTENTIONAL TORTS, (III) AMOUNTS PAYABLE PURSUANT TO SECTION 10 ("INDEMNIFICATION") OR (IV) BREACHES OF SECTION 13 ("CONFIDENTIALITY").


13. Confidentiality

Each party agrees not to disclose the other party's Confidential Information without their prior written consent. "Confidential Information" includes, without limitation: (a) all intellectual property; (b) financial information (including pricing) and business information; and (c) any other information designated in writing as "Confidential". Confidential Information does not include (x) information that has become publicly known through no breach by Company or Marcellus of these confidentiality obligations; (y) information that is independently and lawfully developed or obtained without access to Confidential Information, as evidenced in writing; or (z) information required to be disclosed by law.


14. Identification Rights

Marcellus shall have the right to identify Company as a customer and Company shall have the right to identify Marcellus as the provider of the Marcellus Service.


15. Notices.

All notice required to be given under this Agreement must be given in writing and delivered either by hand, e-mail, certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed, if to Company, to the contact identified in the order form completed by Company and, if to Marcellus, to Marcellus LLC., 34921 Skylark Drive, Union City, CA.


16. General.

(a) Independent Contractors: Marcellus and Company are independent contractors under this Agreement and nothing herein shall be construed to create a partnership, joint venture or agency relationship;

(b) Assignment: Neither party may assign performance of this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other;

(c) Merger or Acquisition: Notwithstanding the provisions of subsection (b) above, each party may assign this Agreement without the other party's prior written consent in the case of a merger, acquisition or other change of control, and in such event this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns;

(d) Governing Law: This Agreement shall be governed by the laws of the State of California applicable to contracts entered into and wholly to be performed therein;

(e) Forum Selection: Any and all disputes arising out of or related to this Agreement or performance hereof, shall be brought in the Federal or state courts in the State of California and the parties hereby agree to the jurisdiction thereof for such purposes and waive any objection thereto;

(f) Effect of Waivers: The waiver by either party of a breach or a default of any provision shall not be construed as a waiver of any succeeding breach of the same or any other provision;

(g) Survival: All terms of this Agreement which by their nature extend beyond their termination, remain in effect until fulfilled and apply to respective successors and assigns;

(h) No Modification Unless in Writing: Except as specifically and expressly addressed in a writing executed by both parties, the terms and conditions of this Agreement in effect between the parties shall govern;

(i) Counterparts; Delivery: This Agreement may be executed in counterparts, all of which are considered one and the same agreement, and becomes effective when one or more counterparts have been signed by each of the parties and delivered to the other party. Delivery by facsimile or e-mail is as effective as physical delivery of an originally executed copy hereof;

(j) Integration; Amendment: This Agreement constitutes the entire understanding of the parties hereto with respect to the matters contemplated hereby, supersedes all previous agreements between the parties concerning the subject matter hereof and cannot be amended except by a writing signed by authorized representatives of both parties;

(k) No Reliance: No party hereto has relied on any statement, representation or promise of any party or representative thereof except as expressly set forth in this Agreement.


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© Marcellus LLC. 2008