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Terms of Service Last updated: 6 November 2008 1. Acceptance of Terms Vcast (Asia) Limited (referred to herein as "Vcast") provides its Service (as defined below) to you subject to this Terms of Service ("TOS"). Vcast may update, revise this TOS or discontinue, add or remove the Service or any part thereof, from time to time. You agree to view the TOS periodically to be aware of the change made to the TOS. Vcast has not liability to you as a result of the change or removal. By continuing to use the Service, you signify your binding acceptance of the TOS (and the updates or amendment thereto), as published on the Vcast™ website ("Site") and you represent that you have the legal capacity to form a binding contract with us. 2. Description of Service The "Service" includes (a) the Site, (b) the services provided by the Site and by the Vcast™ software made available through the Site, and (c) all data, text, images, sounds, video, content, programming and software made available through the Site or services, or developed under the Vcast™ software("Content"). Any new features added to or augmenting the Service are also subject to this TOS. 3. Permission to Use the Service You may access the Service for personal use only, provided that you are in compliance with all provisions of this TOS. By using or accessing this Service you agree to comply with the copyright, trademark, service mark, and all other applicable laws in relation to the Service. You agree not to copy, distribute, transmit, publicly display, publicly perform, modify, rent, sell, or create derivative works of any portion of the Service. You are welcome to link to the Site from your website. However, this does not imply that your website has the endorsement of or association with Vcast. You acknowledge that Vcast may, in its sole discretion and at any time, discontinue providing any part of the Service to you without notice. 4. User Conduct Through your use of the Service, you agree that you shall not violate any applicable laws, the rights of others, or violate or circumvent the operational and security mechanisms of the Service. Examples of such prohibited behavior include, but are not limited to:
• Using the Service or submitting Content to promote, conduct, or contribute to
fraudulent, obscene, pornographic and/or illegal activities and/or misleading
and inaccurate messages, including deceptive impersonation or activities
involving the exploitation of children; Additionally, certain portions of the Service, including specifically, certain content and programming available on the Service, have recommendations regarding the suitability of content or programming for certain ages. By using the Service and/or the Site (if any), you acknowledge and agree that you will not access or view any content and programming in violation of the specified age recommendations. 5. User ID Some functions of this Service require registration by selecting a unique user identification ("User ID") and password, and by providing certain personal information. If you select a User ID that Vcast, in its sole discretion, finds offensive or inappropriate, Vcast has the absolute right to suspend or terminate your account. You agree to (a) keep your password confidential and use only your User ID and password when logging in, (b) ensure that you log out from your account at the end of each session on the Site, and (c) immediately notify Vcast of any unauthorized use of your User ID and/or password. You are fully responsible for all activities that occur under your User ID. Vcast will not be liable for any loss or damage arising from unauthorized use of your User ID and/or password or your failure to comply with this Section. You agree that Vcast may for any reason, in its sole discretion and without notice or liability to you or any third party, immediately terminate your account and your User ID, and remove or discard from the Service any Content associated with your account and User ID. Grounds for such termination may include, but are not limited to, extended periods of inactivity or violation of the TOS. 6. Contributions to Vcast or the Service Vcast does not claim ownership of any Content you submit to the Service, including any software applications, or widgets, you may develop under the Vcast™ software ("Contribution"); however, Vcast has the right to remove any Contribution that violates the TOS or any other written policy or terms of use published by Vcast from time to time, or is otherwise objectionable, as determined solely by Vcast. By submitting Content (video or other content, including but not limited to files, graphics, music, sound, image, file, photo, animation, artwork, text, message, links, and materials) for inclusion on the Service, you represent and warrant that you have all necessary permissions to grant the following license to Vcast. You further acknowledge and agree that you are solely responsible for anything you post or otherwise make available on or through the Service, including, without limitation, the accuracy, reliability, nature, rights clearance, compliance with law and legal restrictions associated with any Contribution. Vcast disclaims any liability relation to your Content. You hereby grant Vcast and its successors a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, copy, distribute, transmit, prepare derivative works of, publicly display, host, index, tag, cache, insert ad insertion software, reproduce, modify, adopt, excerpt, publish, transmit, reference, publicly perform such Contribution on, through or in connection with the Service in any media formats and through any media channels, including without limitation, for promoting and/or redistributing part of the Service (and its derivative works), or engage in such further and other action regarding your Content as may be necessary or appropriate in order to effect the purpose of Service, all in any form, medium or technology now know or later developed. This license granted by you terminates once you or Vcast removes your Contribution from the Service. You understand that your Contribution may be transmitted over various networks and changed to conform and adapt to technical requirements. Any material, information or idea you post on or through the Service, or otherwise transmit to Vcast by any means, is not considered confidential by Vcast and may be disseminated or used by Vcast or its affiliates without compensation or liability to you for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products. This provision does not apply to personal information that is subject to our privacy policy except to the extent that you make such personal information publicly available on or through the Service.
You acknowledge and agree that Vcast may store the Content and may disclose the
Content if required to do so by laws or if is necessary to: Subject to the license you grant, you retain all right, title, interest in your Content, including without limitation intellectual property rights. You have the right to revoke your license with respect to your Content you provide by requesting Vcast to remove your Content from the Service. Vcast and/or its licensors own all right, title, interest, including without limitation all worldwide intellectual property rights in the Service. By entering into the TOS and/or your using the Service, you shall not acquire any intellectual property or similar rights in the Service. 7. Privacy Policy Vcast agrees to protect your personal information as described in the Privacy Policy published on the Site. Vcast can use and transfer your personal information to the extent provided in the Privacy Policy. 8. Third-Party Content Each contributor to the Service of data, text, images, sounds, video, software and Contributions is solely responsible for the accuracy, reliability, nature, rights clearance, compliance with law and legal restrictions associated with their contribution. As such, Vcast is not responsible to, and shall not, regularly monitor or check for the accuracy, reliability, nature, rights clearance, compliance with law and legal restrictions associated with any Contribution. You will not hold Vcast responsible for any user's actions or inactions, including things they post or otherwise make available via the Service. In addition, the Vcast™ Service may contain links to third party websites and offers, links to download third party software applications. Additionally, third parties may make available, on their own websites, widgets developed by them using the Vcast™ software API. These third party links and widgets are not owned or controlled by Vcast, however, you acknowledge and agree that Vcast may disable your use of, or remove, any third party links or widgets on the Vcast™ Service to the extent they violate the TOS. Vcast assumes no responsibility for the content, functionality, services, privacy policies, or other practices of these third-parties. You are encouraged to read the terms and other policies published by such third parties on their websites or otherwise. By using the Service, you agree that Vcast shall not be liable in any manner due to your use of, or inability to use, any third-party website or widget utilizing the Vcast™ Software. 9. Making Claims of Copyright Infringement If you believe that your work (as included on the Service) has been copied, displayed, or distributed in a way that constitutes copyright infringement, please notify Vcast. A notification of claimed infringement must be a written communication as set forth below, and must include substantially all of the following: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright interest that is allegedly infringed; (b) a description of such copyrighted work(s) and an identification of what material in such work(s) is claimed to be infringed; (c) a description of the exact name of the infringing work and the location of the infringing work on the Service; (d) information sufficient to permit Vcast to contact you, such as your physical address, telephone number and e-mail address; (e) a statement by you that you have a good faith belief that the use of the material identified in the manner complained of is not authorized by the copyright owner, its agent, or the law; (f) a statement by you that the information in the notification is accurate and that you are authorized to act on the copyright owner's behalf. Vcast can be reached by email, fax or post as follows:
Vcast (Asia) Ltd or Fax: +852 2121-8898 or Email: enquiry@vcast.net Attention: Customer Service Notwithstanding the aforesaid, you acknowledge that Vcast is not responsible for enforcing your intellectual property rights or for surfing or taking legal action against infringers. 10. DISCLAIMER OF WARRANTIES *READ THIS CAREFULLY* You understand and agree that your use of the Service is at your sole risk. The Service is provided on an "as is" and "as available" basis and to the fullest extent permitted by law, Vcast expressly disclaims all warranties, express or implied, in connection with the Service and your use thereof, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, accuracy, and non-infringement. Vcast makes no representations or warranties about the accuracy or completeness of the Content made available through the Service or the content of any websites linked to the Site. Vcast does not warrant, endorse, guarantee, or assume responsibility for any product, application or service advertised or offered by a third party through the Service or any hyperlinked website or featured in any banner or other advertising, or for the accuracy, content, completeness, legality, reliability or operability or availability of information or material provided in the Service, or deletion, failure to store, misdelivery, or untimely delivery of any information or material, or harm resulting from downloading or accessing information or material through the Service. Vcast will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products, applications or services. As with the purchase of a product or service, or installation or download of any application, through any medium or in any environment, you should use your best judgment and exercise caution where appropriate. No advice or information, whether oral or written, obtained by you from Vcast or through the Service shall create any warranty not expressly stated in this TOS. You also understand that any material downloaded or otherwise obtained through the Service is done at your own discretion and risk and that you will be solely responsible for the damage to computer, loss of data that results in the downloading of such material. 11. LIMITATION ON LIABILITY *READ THIS CAREFULLY* You understand and agree that Vcast shall not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses (even if Vcast has been advised of the possibility of such damages), resulting from: (a) the use or the inability to use the Service; (b) the cost of procurement of substitute services resulting from any services obtained through or from the Service; (c) unauthorized access to or alteration of your transmissions or data; (d) statements or conduct of any third party on the Service; (e) inaccuracies, mistakes, or errors of content; (f) personal injury or property damage of any nature whatsoever resulting from your access to and use of the Service; (g) any bugs viruses, Trojan horses, or the like, which may be transmitted to or though the Service by a third party; or (h) any other matter relating to the Service, whether based on warranty, contract, tort, or any other legal theory. In the event this limitation of liability shall be for any reason held unenforceable or inapplicable, you agree that the aggregate liability of Vcast shall not exceed the amount Paid by “you” for the use of the Service. Such limitation also apply with respect to damage incurred by reason or services of goods received through or advertised on the Service or received through any links provided in the Service. Under no circumstances shall Vcast, its affiliate, directors, employees be held liable for delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond their reasonable control, including without limitation, internet failures, computer/ telecommunication/ equipment failures, electricity breakdown, strikes, labour disputes, riots, insurrections, civil disbursement, shortage in labour/ resources, fires, floods, storms, explosions, act of God, war, government actions, orders of order, non-performance of third party, loss or fluctuations in heat and light. 12. Indemnification You agree, at your own expense, to indemnify, defend, and hold harmless Vcast, its employees, agents, representatives and customers of Vcast against any claim, alleged claim, suit, action, or administrative proceeding arising out of, or related to use of or access to the Service, or violation of the TOS or policy of Vcast by you or, when due to your cooperation or negligence or default, by someone else using your User ID. 13. Waiver and Severability The failure of either party to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any of the TOS provisions, including the Disclaimer of Warranty or Limitation of Liability, are held invalid, unenforceable, or void by a court, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect. 14. Governing Law This TOS shall be governed by and construed in accordance with the laws of Hong Kong. Any action brought by you against Vcast arising out of this TOS shall be brought exclusively in the courts located in Hong Kong, and any action brought by Vcast against you arising out of this TOS shall, at the election of Vcast, be brought in either the courts located in Hong Kong, or the applicable courts of the jurisdiction in which you reside. You and Vcast hereby consent to, and irrevocably submit yourselves to, the exclusive personal jurisdiction and venue of such courts. 15. Statute of Limitations You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred. 16. Assignment This TOS and the rights and licenses it grants or receives may be assigned or transferred by Vcast without restriction. 17. Comments/Inquiries If you have any comments or inquiries regarding this TOS or the Service, please contact Vcast as follows:
Vcast (Asia) Ltd
or
or Attention: Customer Service |
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Copyright © 2008 VCAST, INC. All rights reserved. Any use, reproduction, modification, distribution, display or performance of this material without VCAST’s prior written consent is prohibited. |