This Media Shower Terms of Service Agreement ("Agreement") is the contractual agreement between YOU and MEDIA SHOWER, INC., a Massachusetts corporation (the "Company") regarding your use of the Media Shower website ("Website"), any services provided to you by the Company, and the activities and transactions conducted through the Website (together, the "Services"). Please read these terms and conditions carefully before using the Website and purchasing Services (including Content, as defined below). Your use of this Website and acquisition of Services may also be subject to various laws and regulations, which are your responsibility.
By using the Website and acquiring Services, you are consenting to the following terms and conditions as they apply to you and your usage and purchase. If you do not agree to any of the following terms or conditions you should not use the Website or purchase any Services.
2. Terms of Service.
The Company provides this Website and the Services to you subject to the following Terms of Service ("TOS"). The TOS may be updated by us from time to time without notice. We suggest that from time to time you review the TOS for possible changes. In addition, when acquiring particular Services, you will be subject to any posted guidelines or rules applicable to such Services that may be posted on the Website from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS.
You can review the most current version of the TOS at any time at: http://www.mediashower.com/terms.html
Any update or change is effective immediately upon posting. If any update or change is unacceptable to you, you may immediately terminate your use of the Services as provided in Section 13 below. Your continued use of the Services following modification to the TOS shall be conclusively deemed as acceptance of such modification.
3. Description of Services.
(a) Idea Generation. The Company will provide article ideas and related content ideas for your website based on keywords. Ideas will be generated by the Company based on keywords provided to the Company by you, as well as descriptions provided by you of your website and the type of content you deem to be successful based on your experience. The number of ideas provided by the Company will be as requested by you on the Website. Ideas may be generated by writers acting as independent contractors for the Company and/or editors employed by the Company. Once approved by the Company, ideas are delivered to you. Ideas may thereafter be developed into articles or other content by you or the Company, as you determine. You expressly agree and acknowledge that ideas are typically not protectable by copyright or other intellectual property laws and are not proprietary to you or any other party.
(b) Articles. The Company will provide articles based on ideas generated by you or the Company and keywords. Articles will be created by the Company based on keywords provided to the Company by you, as well as descriptions provided by you of your website and the type of content you deem to be successful based on your experience. The number of articles provided by the Company will be as requested by you on the Website. Articles will be assigned to the writer deemed most appropriate by the Company and a first edited draft of approximately 500 to 1,000 words in length will be generated typically within three (3) business days of your order. Once an article is delivered to you, you have three days (72 hours) to accept the articles as delivered or request one round of revisions. If you do not take action on an article after 72 hours, the article will automatically be accepted. If you request a revision, the revised draft will be delivered typically within three (3) business days of the date on which the requested revisions are received. Additional revisions may be made at an additional cost to you.
(c) Promotion. The Company will promote content on your website by building links to such content. You provide the Company with the URL to the content you wish to promote along with any ideas for niches or other types of sites where it can be promoted. The number of links provided by the Company will be as requested by you on the Website. The Company will build the requested number of links into your URL, with a report delivered to you when completed. The Company will use its commercially reasonable efforts to (i) provide such links within ten (10) business days of the order date, and (ii) provide links from websites with a homepage Google PageRank of at least 2.
(d) Generally. Any articles and/or other material provided by the Company to you pursuant to the Website or otherwise, including any other media and intellectual property relating to the Services, shall be referred to herein as "Content", and shall be subject to these TOS, as updated from time to time. Company Services and Content are only available in those jurisdictions where the Company is authorized or permitted by law to promote or sell them. If you fail to provide the necessary information for the Company to provide the Services, including but not limited to keywords, the Company will not be held responsible, or deemed to have failed to meet its obligations under this Agreement.
4. Ownership of Content and the Website.
(a) Content. All Content developed for you, including but not limited to all articles, text, data, graphics, pictures, images, and illustrations, shall be your sole and exclusive property from and after the Company's receipt of the fees therefor, unless otherwise expressly noted. From and after the Company's receipt of all fees therefor, all such work product created or conceived for you by the Company pursuant to this Agreement constitutes a work made for hire, as that term is defined in Section 101 of Title 17 of the United States Code (the "Copyright Act"), and shall be and remain your sole and exclusive property, and you shall retain any and all intellectual property rights therein. If all or part of such work product is, for any reason, deemed not to be a work made for hire, under the Copyright Act or otherwise, then the Company shall assign all ownership thereof and all intellectual property rights therein to you, and shall execute all documents reasonably necessary to transfer to you the ownership of any and all rights, including but not limited to, copyrights that the Company may have in such work product. If and to the extent any Content contains intellectual property owned by the Company or constitutes Third-Party Content (as defined below), the Company will grant or obtain, as applicable, a limited, non-exclusive, non-transferable, royalty-free license to use any such intellectual property owned by the Company or any Third-Party Content solely in connection with the provision of the Services hereunder.
(b) The Website. The Media Shower Website itself, and each element of the Website, are the copyrighted works of the Company and are and shall remain the sole and exclusive property of the Company. Unless otherwise specified, neither you nor any other person or entity has any right to copy, display, distribute, republish or create derivative works from the Website or any element in any form.
5. Use of Services and Content.
(a) Services and Content. In using the Website and the Services, including any Content, and publishing the Content on your site, you agree not to alter, change or modify the Content in any way that:
(ii) results in the Content using or being used to, or infringing upon, any patent, trademark, trade secret, copyright, or other intellectual property right of a person or entity;
(iii) includes in the Content any (1) unauthorized and/or unsolicited advertising or promotional material, including all forms of "spam," chain letters, pyramid schemes, or any political campaigning, or (2) software viruses or other computer code designed or likely to interrupt, corrupt, or impair the content or operation of any computer or telecommunications program or device, or surreptitiously intercept or expropriate any system, data, or personal information; or
(iv) harms or attempts to harm minors in any way. Any action by you that, in the Company's sole discretion, is in violation of this Section 5 may result in the loss of your right to access the Website and receive Services and/or the termination of this Agreement.
(b) Third-Party Content. You acknowledge that the Services may contain intellectual property, including articles, text, data, graphics, pictures, images, and illustrations, owned or controlled by a third party ("Third-Party Content") that is protected by copyrights, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. You further acknowledge that all graphics, pictures and images provided to you by the Company are and will be Third Party Content, unless the Company notifies you otherwise at the time such graphics, pictures and images are provided. You may not modify, publish, transmit, participate in the transfer or sale of, create derivative works of, or in any way exploit any such Third-Party Content, in whole or in part, except as expressly permitted by these TOS. If no specific restrictions are displayed, you may make copies of such Third-Party Content, including copyrighted material, trademarks, or other proprietary materials, provided that you maintain any notices contained in the Third-Party Content such as all copyright notices, trademark legends or other proprietary rights notices. Except as provided in the preceding sentence or as permitted by the fair use privilege under the Copyright Act or other U.S. copyright laws, you may not upload, post, reproduce, or distribute Third-Party Content protected by copyright, or other proprietary right, without obtaining permission of the copyright owner. Further, you may not distribute, modify, republish or publicly display any of the Third-Party Content unless permitted by the Company. The Company does not guaranty the accuracy, quality, integrity or tastefulness of the Third-Party Content except as expressly provided by these TOS.
6. Distribution of Third-Party Content and Alteration of Content; Linking.
(a) Third-Party Content. You are liable for any damage resulting from any infringement of copyrights, or other proprietary or intellectual property rights, with respect to any Third-Party Content or any Content provided to you by the Company that is altered, changed or modified by you, or any other party obtaining such Third-Party Content or Content through you, in violation of this Agreement.
(b) Linking. The Website and Services may include links to other sites that are not maintained or controlled by the Company. Because the Company has no control over such sites and resources, you acknowledge and agree that the Company is not responsible for the availability of such external sites or resources, does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources and makes no warranties or representations regarding these sites or their products or services. You further acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such linked site or resource.
(c) Export. The U.S. export control laws regulate the export and re-export of technology originating in the United States. This includes the electronic transmission of information and software to foreign countries and to certain foreign nationals. You agree to abide by these laws - including but not limited to the Export Administration Act, the Arms Export Control Act and their implementing regulations - and not to transfer, by electronic transmission or otherwise, any Content derived from the Services to either a foreign national or a foreign destination without first obtaining any required government authorization. You further agree not to upload data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. This assurance and commitment shall survive termination of this Agreement.
7. Access to Services; Access by Children.
(a) Access Generally. You agree that all information provided by you in connection with the Services will be true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate your account and refuse any and all current or future provision of the Services, as provided in Section 13. You agree to notify the Company within ten (10) days of any changes in registration or other data. Failure to comply fully with this provision may result in immediate suspension or termination of your right to access the Services.
(b) Access by Children. You represent and warrant that (i) you are not a minor and (ii) you will not permit the use of the Website by any minor. If the Company receives a complaint that states that a user of the Website is under 13 years of age, the Company will comply with the requirements of the Children's Online Privacy Protection Act of 1998 ("COPPA").
9. Member Account, Password And Security.
You will receive a password and account designation upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. The Company cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 9. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your password, or any credit, debit or charge card number stored on the Services), you must immediately notify the Company of the problem in writing.
Each of you and the Company agrees to treat as confidential and hold in strict confidence all information and materials received or obtained from the other party that are confidential, proprietary or non-public in nature. Each of you and the Company further agrees to use at least the same degree of care to avoid disclosure or dissemination of the other party's confidential information as such party uses to protect its own confidential materials, but in any event, at least a reasonable degree of care. Neither shall use the confidential information of the other party for its own benefit or the benefit of any third party, or for any purpose other than to effectuate the purposes of this Agreement, nor disclose to any employee without a business need to know or to any third party without the other party's prior written consent. Notwithstanding the foregoing, a party shall not be liable for disclosure of confidential information of the other party if the same: (a) is in the public domain at the time of disclosure; (b) becomes known to the other party from a third-party source under no obligation to maintain confidentiality; (c) becomes publicly available though no fault or failure to act of the receiving party or breach of this Agreement; or (d) can be shown by the receiving party's existing business records to be already known by the receiving party when received or to have been independently developed by the personnel of the receiving party without access to the information provided by the other party. It shall not be a breach of this Section 10 for confidential information to be disclosed to the extent required by a court or other governmental authority (provided that the receiving party has notified the disclosing party of such requirement, to the extent permitted by applicable law, and cooperated with the disclosing party in any attempt to make such disclosure subject to a protective order or confidentiality agreement).
11. Fees; Payments; Refund Policy.
You agree to pay all charges to your account, including applicable taxes, in accordance with billing terms in effect at the time the fee or charge becomes payable. The billing terms shall be posted on the Website and may be modified from time to time. The Company reserves the right to change the amount of, or basis for determining, any fees or charges for the Services, and to institute new fees or charges effective upon prior notice to you.
You must provide the Company or its designee with valid credit card information. You must promptly notify the Company of changes to: (a) the account number or expiration date of your designated card; (b) your billing address; and (c) the name of each other individual whom you have authorized to use the Services.
In connection with some subscription options, the Company will automatically renew and charge your account on a periodic basis without further notice to you. Further details concerning renewal procedures will be available on the Website, as applicable.
The Company reserves the right to suspend or terminate your use of the Services without notice upon rejection of any card charges or if your card issuer (or its agent or affiliate) seeks return of payments previously made to the Company when the Company believes you are liable for the charge. Such rights are in addition to and not in lieu of any other legal rights or remedies available to the Company. You agree to pay a late charge on all amounts due but not timely paid and which remain unpaid for thirty (30) days after being billed. The late charge will equal one and one-half percent (1.5%) of the past due amount per month until paid or, if such rate is in excess of the allowable rate, the maximum rate allowed by law. The Company reserves the right to refer your account to a third party for collection in the event of ongoing default.
It is the Company's goal to provide you with a satisfactory product. Any refunds for work performed are issued on an individual basis after review of your needs and the product delivered. Contact us for more information.
(a) Indemnification by You. You agree to indemnify and hold the Company, and its subsidiaries, affiliates, officers, directors, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you alter, change or modify, your use of the Services, your access or use of the Website, your violation of this Agreement or any of these TOS, or your violation of any rights of another, including any intellectual property rights.
(b) Indemnification by the Company. The Company agrees to (i) defend you against any third party claim, action, suit or proceeding alleging that the Services, including any Content provided by the Company, infringe the intellectual property rights of another, and (ii) pay any damages, losses, costs and expenses (including reasonable attorney's fees) resulting from such claim defended by the Company, including any settlement thereof. In no event shall the Company be liable or responsible for, and shall have no indemnification obligation with respect to, your website, the content thereon or any links thereto that do not constitute Services or Content strictly as provided by the Company. The indemnification provided for hereby shall be your sole remedy and the Company's sole obligation in the event of any claim that any Services, including any Content provided by the Company, infringe the intellectual property rights of another.
You can terminate your use of the Services hereunder at any time for any reason by providing thirty (30) days' advance written notice to the Company.
Upon termination, you agree to (i) pay to the Company all outstanding amounts owed for all work performed up to and including the date of termination, and (ii) permit the Company to return or destroy all data provided by you to the Company. The Company will perform all Services ordered and for which payment has been received prior to the effective date of such termination. Upon termination, all obligations of the parties to one another shall cease and no further compensation shall be owing to the Company other than any amounts outstanding as of the date of termination. Sections 4-6, 8-10 and 12-24 of these TOS shall survive any such termination.
14. Proprietary Rights.
The information, advice, data, software and content viewable on, contained in, or downloadable from the Website (collectively, the "Website Content"), including, without limitation, all text, graphics, charts, pictures, photographs, images, line art, icons, renditions and floor plans, are copyrighted by, or otherwise licensed to, the Company or its content suppliers. The Company also owns a copyright of a collective work in the selection, coordination, arrangement, presentation, display and enhancement of the Website Content (the "Collective Work"). All software used on the Website (the "Software") is the property of the Company or its software vendors and is protected by United States and international copyright laws. Viewing, reading, printing, downloading or otherwise using the Website Content and/or the Collective Work does not entitle you to any ownership or intellectual property rights to the Website Content, the Collective Work or the Software. You are solely responsible for any damage, cost or expense resulting from your infringement of the Company's or any third party's intellectual property rights regarding the Company marks (as defined below), the Website Content, the Collective Work, the Software and/or any other harm incurred by the Company or its affiliates as a direct or indirect result of your copying, distributing, redistributing, transmitting, publishing or using the same other than strictly in accordance with the terms and conditions of this Agreement.
The trademarks, logos, page headers, graphics, button icons, scripts and product and service marks and names displayed on the Website are the property of Media Shower, Inc. (the "Company Marks"). Without the Company's prior permission, you agree not to display or use the Company Marks in any manner. You may not use any meta tags or any other "hidden text" using the Company Marks without the express written consent of the Company. The Company makes no proprietary claim to any third-party name, trademarks or service marks appearing on the Website, which are and shall remain the property of their respective owners.
16. Copyright Infringement Claims.
It is our policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. If you believe that any material contained on the Website may infringe on your copyright, notice must be given in writing of the following: (a) identification of the copyrighted work claimed to have been infringed; (b) identification of the allegedly infringing material; (c) information sufficient to permit the Company to locate the infringing material; (d) a statement that the complaining party has a good faith belief that use of the material is not authorized or permissible by law; and (e) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the copyright owner, agent, or licensee. Anyone who knowingly misrepresents that material is infringing in such a notice will be liable for any damages and any associated costs incurred by the Company. Written notice must be sent to: Media Shower, Inc., ATTN: Copyright Infringement, P.O. Box 920630, Needham, MA 02492.
17. Warranties; Disclaimer of Warranties; Limitation of Liability.
(a) The Company warrants that the Services will be performed in a professional and workmanlike manner consistent with industry standards reasonably applicable to the performance of the Services. The Company specifically makes no representation or warranty as to the results that may be obtained from the use of the Services. If you believe that there has been a breach of the warranty set forth in this Section 17(a), you must notify the Company in writing within fifteen (15) days of such alleged breach, stating in reasonable detail the nature of the claimed breach. If the Company determines that there has been a breach of the warranty set forth above, then the Company's sole obligation, and your exclusive remedy, will be for the Company to promptly correct or re-perform the affected Services, and there will be no additional charge to you for the investigation and correction efforts performed by the Company pursuant to this Section 17(a).
(b) THE FOREGOING WARRANTY IS THE ONLY WARRANTY PROVIDED BY THE COMPANY AND IS IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES TO BE PROVIDED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(c) YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE COMPANY SHALL NOT BE LIABLE FOR (1) ANY LOST PROFIT OR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, DIRECT OR INDIRECT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (2) ANY DAMAGES IN EXCESS OF THE COMPENSATION RECEIVED BY THE COMPANY FROM YOU UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE COMPANY'S RECEIPT OF NOTICE OF SUCH DAMAGES (OR FOR SUCH SHORTER PERIOD AS THE COMPANY HAS BEEN PERFORMING UNDER THIS AGREEMENT FOR YOU). IN NO EVENT SHALL THE COMPANY BE LIABLE IN ANY RESPECT FOR ANY DAMAGES RESULTING FROM ANY UNAUTHORIZED ACCESS TO, OR ALTERATION OR MODIFICATION OF, ANY SERVICES OR CONTENT, OR ANY THIRD-PARTY CONTENT, OR STATEMENTS OR CONDUCT OF ANY THIRD PARTY WITH RESPECT TO THE SERVICES OR THE CONTENT OR ANY THIRD-PARTY CONTENT.
Except as required by law, notices to you may be made via either email or as otherwise requested by you upon your registration. The Company may also provide notices of changes to the Services or these TOS or other matters by displaying notices or links to notices to you on the Website. Notice will be deemed given when the email is sent, unless the sending party receives notice that the address is invalid. You agree that all agreements, notices, disclosures and other communications that the Company provides to you electronically satisfy any legal requirement that such communications be in writing.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement between you and the Company.
You may not transfer your rights under this Agreement. The Company may assign all rights and liabilities under this Agreement to a subsidiary, affiliate or successor to all or a substantial part of its business and assets used to provide the Services without your consent. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the successors and permitted assignees of the parties.
If any provision of this Agreement is held to be invalid or unenforceable, such provision will be stricken and the remaining provisions enforced.
Headings and captions of the section and paragraphs are for reference purposes only.
23. Governing Law and Jurisdiction.
This Agreement and use of the Website shall be governed by the laws of the Commonwealth of Massachusetts, without regard to the conflict of laws provisions of other jurisdictions. You consent to submit to jurisdiction and venue in the state and federal courts located in the Commonwealth of Massachusetts and further agree that any cause of action you may bring arising under your use of the Website or the Services will be brought by you exclusively in a state or federal court located in the Commonwealth of Massachusetts.
24. General Provisions.
By using the Website and the Services, you represent and warrant that you have the capacity to be bound by and can form legally binding contracts under applicable law, or if you are acting on behalf of a company or other entity that you have the authority to bind such company or entity. This Agreement, and any agreements incorporated by reference herein, set forth the entire understanding and agreement between you and the Company with respect to the subject matter hereof.