Posted: Aug 7 2006 12:00 pm

The following describes the terms under which Eyespot Corporation ("Eyespot"), offers you access to the content and services at http://www.Eyespot.com/ and other services it may make available from time to time (collectively the "Services"). THIS IS A LEGAL AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES. BEFORE CLICKING ON THE "I AGREE" BUTTON OR USING OUR SERVICES, YOU SHOULD READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE "I AGREE" BUTTON OR DOWNLOADING OR UPLOADING ANY CONTENT FROM OR TO OUR SERVICE, OR OTHERWISE USING THE SERVICES IN ANY MANNER, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. YOU MUST ACCEPT AND ABIDE BY THESE TERMS AS PRESENTED TO YOU; CHANGES, ADDITIONS, OR DELETIONS ARE NOT ACCEPTABLE, AND EYESPOT MAY REFUSE ACCESS TO THE SERVICES FOR NONCOMPLIANCE WITH ANY PART OF THIS AGREEMENT.

YOU MAY USE THE SERVICES IF YOU ARE AT LEAST 13 YEARS OF AGE. HOWEVER, IF YOU ARE UNDER THE AGE OF EIGHTEEN (18) OR NOT ABLE TO ENTER INTO LEGAL AGREEMENTS UNDER APPLICABLE LAW, YOU MUST HAVE A PARENT OR LEGAL GUARDIAN CAREFULLY READ AND AGREE TO THE TERMS OF THIS AGREEMENT ON YOUR BEHALF.

YOUR MEDIA
Your media (including without limitation text, video, photographs, graphics, images, music and sound that you have created) are yours. We claim no intellectual property rights over the material you have created and provided to Eyespot (other than the limited license grant right outlined below). You can delete your media and modify and/or remove associated content at your discretion.

THE EYESPOT SERVICES
Information Control. Eyespot does not control the content provided by other parties, whether by its customers or other users, which is made available through the Services. You must use caution and common sense when using the Services. You understand that by using the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, or content that may be inaccurate, or deceptive. You agree to use the Services at your sole risk and that Eyespot shall have no liability to you of any kind for content whether that of Eyespot or third parties, that may be found to be offensive, indecent, or objectionable, inaccurate or deceptive, in any manner.

Your Information.
As used in this Agreement, the term "Your Information" means any information you provide to Eyespot or other users in using the Services, including in any registration process, in any public message area or through any email, messaging, or sharing feature. Except as set forth in the Eyespot Privacy Policy as may be established from time to time, your personal information (such as name and email address) will be deemed to be confidential. With the exception of content published or shared with others using the Services, and any non-personal information or material sent to Eyespot will generally be deemed to NOT be confidential. You understand and agree that we may disclose information about you if we have a good faith belief that we are required to do so by law or legal process, to respond to claims, or to protect the rights, property, or safety of Eyespot or others, or as stated in our Privacy Policy.

You are solely responsible for Your Information. Your Information may not:

* be false, inaccurate, misleading or fraudulent;
* infringe anyone's copyright, trademark, trade secret, patent or other proprietary rights or rights of publicity or privacy;
* violate any law, statute, ordinance or regulation;
* be obscene, defamatory, libelous, threatening, abusive or harassing, or encourage any of the foregoing;
* promote any commercial product the sale of which you stand to benefit from;
* contain any viruses, Trojan horses, worms, time bombs, cancelbots, Easter eggs or other computer programming routines that may damage, detrimentally interfere with, intercept or use any system, data or personal information in an unauthorized way;
* create liability for Eyespot or cause it to lose (in whole or in part) the services of its ISPs or other suppliers.

You grant Eyespot a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable right to exercise the copyright, publicity, and database rights associated with Your Information, in any media now existing or later invented within the confidentiality and privacy terms in this Agreement.

Passwords.
Upon registration for the Services, you will choose a login and a password. Only one login per account is permitted. You may not create multiple accounts. With regards to your password, you understand that you are solely responsible for maintaining its confidentiality, and Eyespot recommends that you choose one that is at least 8 characters in length and a mix of numbers and letters. You shall be solely and fully responsible for all activities that occur under your account. Eyespot shall not be responsible for any loss, claim, or other liability that may arise from the unauthorized use of any password. If a password is lost or stolen, it is your responsibility to notify Eyespot so that the missing password can be deactivated and a new one assigned.

GRANT OF RIGHTS
Eyespot is a remixing community. Therefore, Eyespot requires that you grant it the appropriate rights to support mixing and remixing of your media with other media. There are also certain rights needed to allow you to mix and remix your content with "paid-for" or "premium" content. The following license grant covers the community's remixing needs.

You grant Eyespot and its affiliates, successors, assigns, and licensees a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, license to do the following with any and all content in all forms and media now known or hereafter developed, that you upload to the Services, or otherwise provide to Eyespot (collectively "Your Content"): reproduce, use, distribute, publish, publicly perform, publicly display, transmit, and/or otherwise exploit Your Content, and create derivative works based upon Your Content.

You own the copyright in any of Your Content that is created by you (provided it is not created for an employer or as part of a "work for hire" arrangement). You can choose to keep Your Content private from other Eyespot users, in which case the other Eyespot users have no right to use Your Content. However, if you do choose to make Your Content available to other Eyespot users through the Eyespot website, you agree that Your Content is made available under the terms and conditions of the Creative Commons Legal Code (Attribution 2.5) (the "Creative Commons License"), which is available here. The Creative Commons License allows others to copy, distribute, display and perform Your Content, and to make derivative works and commercial use of Your Content without paying any royalties to you. However, users are required to acknowledge your authorship and may only reuse or distribute Your Content under the same Creative Commons License. Please read the full terms of the Creative Commons License to understand your rights -- and the rights you are granting to others -- before sharing Your Content with other users of the Eyespot website. A right, primarily honored in Europe that protects a creator (and his or her heirs) against distortions of the work and its attribution, is outlined below. This helps protects users in the Eyespot mixing community and is addressed with the following:

You irrevocably waive any and all "moral rights" that you may have in any of Your Content, including but not limited to the rights of paternity or integrity, and rights to claim authorship in relation to any of Your Content, or in any other works or content in which it is incorporated. Eyespot does not currently support an eMarket whereby you as a user of the Service can charge for Your Content. If/when Eyespot does offer this additional service, our terms of use will change to support it. However, currently if the user were to benefit from remuneration from subscriptions or sales of Your Content title-by-title, Eyespot and the user may have to pay royalties to others (e.g. MPEGLA). Due to this, Eyespot requires the following waiving of rights: You expressly and irrevocably waive any rights to receive any fees of any kind (including without limitation public performance fees if applicable, and any share of advertising revenue of any kind received by Eyespot in connection with the Services or otherwise), for use of Your Content as set forth in this Agreement.

PROHIBITED USES
Improper Conduct. You agree that you will not: (a) impersonate any other individual, including without limitation another user or an Eyespot staff member; (b) engage in harassment of any form, including without limitation through improper language or excessive frequency or size of messages; (c) send messages of any kind to any individual who has stated or in any other way demonstrated that he or she does not wish to receive messages; (d) copy or post any personal messages sent to you via the Services; (e) engage in advertising to, or solicitation of, any other users of the Services to buy or sell any products or services through the Services (f) use the Services for any unlawful purpose; or (g) otherwise use the Services in a deceptive, abusive or otherwise disruptive manner. You are solely responsible for your interactions with other users of the Services. Eyespot reserves the right, but has no obligation, to monitor disputes between you and other users.

Copyright Infringement.
You agree that you will not use the Services to infringe upon or misappropriate the intellectual property rights, including without limitation the copyrights, of Eyespot, its end users, or any other any party. WITHOUT LIMITING THE PRECEDING SENTENCE, YOU AGREE THAT YOU WILL NOT USE THE SERVICES TO CREATE DERIVATIVE WORKS OF ANY KIND BASED ON OTHER PARTIES' MATERIALS OR UPLOAD OR DOWNLOAD ANY SUCH MATERIALS, EXCEPT AS EXPRESSLY PERMITTED HEREUNDER, OR UNLESS YOU HAVE OBTAINED ALL NECESSARY RIGHTS AND LICENSES FROM THE OWNERS OF SUCH MATERIALS. YOU ACKNOWLEDGE THAT IT IS YOUR RESPONSIBILITY TO DETERMINE WHICH RIGHTS ARE NECESSARY AND WHO HAS PROPER AUTHORITY TO PROVIDE SUCH RIGHTS. You agree to indemnify, defend and hold harmless Eyespot, its affiliates, suppliers, and each of its and their employees, officers, directors, successors, licensees, assigns, and advisors (collectively the "Eyespot Parties") from and against any and all claims, damages, demands, or liabilities, including but not limited to attorneys fees and costs arising out of any claim that Your Information, Your Content, and any other content of any kind that you create using the Services or upload in any way, infringes upon or misappropriates, violates, or infringes any party's personal or proprietary rights of any kind.

Eyespot reserves the right to terminate your access to the Services if your activities infringe others' copyrights, and will, in appropriate circumstances, terminate your access to the Services if Eyespot determines that you are a repeat infringer.

Interference and Unauthorized Access.
You agree that you will not: (a) attempt to circumvent user authentication or the security of any Eyespot account; (b) use any robot, spider, other automatic device, or manual process to monitor or copy Eyespot's web pages or the content contained in them; (c) use any device, software or routine to interfere or attempt to interfere with the proper working of the Services; or (d) take any action that imposes an unreasonable or disproportionately large load on Eyespot's infrastructure, including without limitation "denial of service attacks."

If you in any way violate any system or interfere with network security you may incur criminal or civil liability. Eyespot will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations.

ANTI-SPAM POLICY
Eyespot encourages only responsible MMS and other forms of texting, and prohibits the use of the Services to send unsolicited commercial messages, or "SPAM". Eyespot defines SPAM as an unsolicited commercial email or MMS or other text message sent to recipients that have not provided their email address or phone number directly to the sender, or an email/MMS/text message sent to recipients who would not have a reasonable expectation of receiving a message from the sender. You may not send any such messages to any other users of the Services, unless you have received their email address or phone numbers directly from them. Reports of unsolicited email or MMS or other text messages may result in the cancellation of an Eyespot account. You may have other obligations under applicable law for which you are solely responsible.

PROPRIETARY MATERIALS
The Services contain copyrighted material, trademarks, service marks and other proprietary information, which may include without limitation text, video, software, photographs, graphics, images, music and sound (collectively "Proprietary Material"). You agree not to copy, reproduce, modify, publish, transmit, participate in the transfer or sale of, create derivative works of, or in any way exploit, in whole or in part, any Proprietary Material, except as expressly permitted herein, and/or solely for your personal, non-commercial use. Specifically, you may use the Proprietary Material for your personal, non-commercial use, and use the Proprietary Material available through the Services, and/or send such Proprietary Material to your own mobile device, or to third parties for personal use only, subject to your compliance with the terms and conditions of this Agreement. Except as expressly set forth in this Agreement (or as otherwise specifically authorized in writing by Eyespot), you may not authorize, encourage or allow the Proprietary Material obtained by you to be reproduced, modified, derivated, displayed, performed, transferred, distributed or otherwise used by anyone else. You agree to advise Eyespot promptly if you become aware of any such unauthorized use. Any and all goodwill accruing from the use of trade names, trademarks and service marks (collectively "Marks") hereunder, shall accrue solely to the respective owners of such Marks. ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU IN THIS AGREEMENT ARE RESERVED BY EYESPOT AND ITS LICENSORS.

SUBMISSIONS
You agree that any information submitted by you through any forum provided by Eyespot is considered non-confidential and non-proprietary, unless specifically stated otherwise in this Agreement. You represent that you have the lawful right to submit such information and agree that you will not submit any information unless you are legally entitled to do so. While Eyespot is pleased to hear from users of the Services, company policy prohibits Eyespot from accepting or considering creative ideas, suggestions or materials other than those it has specifically requested. With this policy Eyespot seeks to avoid any potential future misunderstandings that may occur when projects developed by employees, licensors, or contractors of Eyespot, by and for the sole use of Eyespot, might seem to others to be similar or identical in nature to their own creative work and/or submission(s).

If, despite this request, you submit to Eyespot any creative material, including, but not limited to, ideas, suggestions or other information, you acknowledge and agree that such submission(s) are considered, and shall remain, the property of Eyespot. You further agree and acknowledge that Eyespot shall not be liable for the use or disclosure of such submission(s), that Eyespot shall be subject to no obligations (including, but not limited to, any obligation of compensation whatsoever to you) with respect to the use or disclosure of such submission(s), and that Eyespot shall own exclusively all rights to the submission(s), including, but not limited to rights now known or hereafter existing and rights of every kind and nature throughout the universe.

Because of the open nature of the Internet, common sense would dictate, and Eyespot would recommend, that you not submit any information you consider confidential.

COPYRIGHT INFRINGEMENT CLAIMS PROCEDURE
If you believe that your work has been copied in a way that constitutes copyright infringement, please forward to Eyespot the information described in its Copyright Infringement Policy in accordance with the procedures described in the policy.

LINKED SITES
Eyespot is not affiliated with sites that may be linked to the Services through hypertext ("Linked Sites"). Eyespot has no control over, and is not responsible for, the content on any Linked Site. The Linked Sites are for user convenience only and you access them at your own risk.

HARDWARE/SOFTWARE REQUIREMENTS
In order to use the Services, you may be required to have certain hardware and software, which are your sole responsibility. YOU AGREE THAT IN USING THE SERVICES, YOU MAY INCUR ADDITIONAL CHARGES FROM MOBILE DEVICE SERVICE SUPPLIERS AND OTHER TELECOMMUNICATIONS PROVIDERS. Please check with your service suppliers to obtain information on applicable fees. Eyespot may make software from third-party companies available to you. To download such software, you must first agree to the respective software licenses and/or warranties. Each software product is subject to the individual company's terms and conditions, and the agreement will be between you and the respective company. Eyespot does not guarantee that any software you download will be free of any contaminating or destructive code, such as viruses, worms or Trojan horses. Eyespot does not offer any warranty on any third-party software you download using the Services, and all such third-party software shall be subject to the individual company's applicable warranties and support services, if any.

DISCLAIMER OF WARRANTIES
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND EYESPOT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

EYESPOT DOES NOT WARRANT OR GUARANTEE THAT (1) THE SERVICES ARE COMPATIBLE WITH ANY SOFTWARE, INCLUDING WITHOUT LIMITATION INTERNET BROWSER SOFTWARE; (2) THE SERVICES WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES; (3) ALL CONTENT WILL BE ACCURATE, COMPLETE OR UP TO DATE; (4) ANY INFORMATION OR OTHER CONTENT CONTAINED WITHIN THE SERVICES WILL NOT CONTAIN DEFAMATORY OR ADULT-ORIENTED MATERIAL, OR MATERIAL WHICH SOME INDIVIDUALS MAY DEEM OBJECTIONABLE; OR (5) THE FUNCTIONS OR SERVICES EYESPOT PERFORMS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED.

YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT EYESPOT IS NOT RESPONSIBLE FOR THE CONTENT DISTRIBUTED ON OR THROUGH THE SERVICES, AND IT ASSUMES NO RESPONSIBILITY FOR AND MAKES NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY OR USEFULNESS OF INFORMATION DISTRIBUTED THROUGH THESE SERVICES.

Some states do not allow the disclaimer of implied warranties, so some or all of the above disclaimers may not apply to you.

LIMITATION OF LIABILITY
Regardless of the form of action (whether in contract, tort, breach of warranty or otherwise), and except as otherwise expressly provided herein, IN NO EVENT WILL THE EYESPOT PARTIES (AS DEFINED IN THE COPYRIGHT INFRINGEMENT SECTION ABOVE) BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER WITH RESPECT TO YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR SPECIAL DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, THE EYESPOT PARTIES WILL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE, AND IN NO EVENT WILL THE DAMAGES OR LIABILITY EXCEED US$500. Some states do not allow the exclusion or limitation of incidental or consequential damages under certain circumstances and the above exclusion or limitation may not apply.

GENERAL TERMS AND CONDITIONS
Termination. Without limiting other remedies, Eyespot may without liability and at its sole discretion, immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your access to the Services if: (a) you breach this Agreement or any of the documents it incorporates by reference; (b) Eyespot is unable to verify or authenticate any information you provide to it; or (c) Eyespot believes that your actions may cause legal liability to any person or entity.

Representations and Warranties.
You represent and warrant to Eyespot that: (i) you have full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which you are a party; (iii) you have all the rights you are conveying and have the authority to convey these rights, (iv) this Agreement constitutes a legal, valid, and binding obligation of it when executed and delivered; (v) any activities you undertake in connection with this Agreement will be performed in compliance with applicable laws, rules and regulations; (vi) Your Content not and will not (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral rights, privacy rights, rights of publicity, or any other intellectual property or proprietary right or (b) slander, defame, libel or invade the right of privacy, publicity or other property rights of any person; and (vii) any materials you upload to the Services are free of any known computer viruses.

Indemnity.
You agree to indemnify, defend, and hold each Eyespot Party harmless from and against any claim or demand, and any damages, costs, expenses, judgments, or other liabilities arising in connection with such claim or demand, including reasonable attorneys' fees and costs, made by any other party due to or arising out of your actual or alleged breach of any representation, warranty, covenant, or other obligation set forth in this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of another party.

Legal Compliance.
You agree to comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Services.

Governing Law; Venue.
This Agreement and its validity, construction and performance will be governed in all respects by the laws, and in the state and federal courts of the state of California, without regard to its choice of law provisions. You irrevocably agree to accept the exclusive personal jurisdiction and waive any objections to the venue, of such courts.

Changes and Cancellation.
Eyespot may at any time, without notice or liability, change or eliminate the Services or the content contained therein, or restrict use of any portion of the Services, including limiting the time of its availability, the amount of use permitted, or the persons who are permitted to use it. Eyespot may at any time, in its sole discretion, cancel or suspend the Services for any reason, including without limitation the existence of viruses, bugs, or other causes beyond its control that corrupt the administration, security or proper function of the Services. Reservation of Rights. Eyespot reserves the right to refuse access to the Services for any reason.

Amendment.
Eyespot may modify and/or amend this Agreement at any time by posting the modified and/or amended terms on the Services, which will become effective immediately when posted. By continuing to use the Services after Eyespot posts any amendment, you agree to be bound by the amendment. This agreement may not be amended other than by an authorized officer of Eyespot.

General.
This Agreement contains the entire understanding of the parties relating its subject matter and supersedes any prior written or oral agreement or understandings between the parties with respect to its subject matter. The provisions of this Agreement are to be interpreted in a reasonable manner to effect the purpose of the parties, and this agreement is not to be interpreted or construed against Eyespot because it participated in the drafting of this Agreement. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision. Eyespot may assign or transfer this Agreement, in whole or in part, to any party without notice. All terms and conditions of this Agreement which by their nature are meant to survive the termination of this Agreement will survive termination, including but not limited to the DISCLAIMER OF WARRANTIES, and LIMITATION OF LIABILITY sections. BY CLICKING ON THE "I AGREE" BUTTON OR UPLOADING OR OTHERWISE PROVIDING YOUR CONTENT TO EYESPOT'S SERVICE, YOU ARE ACKNOWLEDGING THAT YOU HAVE READ THIS AGREEMENT CAREFULLY, THAT YOU HAD THE OPPORTUNITY TO HAVE THIS AGREEMENT REVIEWED BY LEGAL COUNSEL AND THAT YOU ARE AT LEAST 18 YEARS OLD, AND YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, OR THAT YOU ARE THE PARENT OR LEGAL GUARDIAN OF A MINOR AT LEAST 13 YEARS OF AGE, AND APPROVE OF AND HAVE THE LEGAL AUTHORITY TO EXECUTE THIS AGREEMENT. Updated: Aug 2, 2006

eyespot.com copyright infringement policy

Notice of Copyright Infringement Claims
Eyespot is concerned about protecting the copyright and other intellectual property rights of others. You may notify Eyespot by providing the following information to our designated agent, as required by 17 U.S.C. � 512, if you believe you have a copyright infringement claim resulting from material posted on this website:

A physical or electronic signature of the owner, or a person authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed; Identification of the copyrighted work, or a representative listing of the copyrighted works, claimed to have been infringed;

Identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to allow Eyespot to locate the material;

Information reasonably sufficient to allow Eyespot to contact you, including your address, telephone number, and if available, your electronic mail address; A statement that you have a good-faith belief that the use of the material as described is not authorized by the copyright owner, its agent, or the law; and A statement that the information in your notification is accurate, and under the penalty of perjury, that you are the owner, or are authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed. Please provide your notification to our designated agent who may be contacted as follows:

Designated Agent: Jim H. Kaskade
Address: 725 South Coast Hwy, Encinitas, CA. 92024
Telephone: 760-487-1820
Fax: 760-487-1826
E-mail: copyright@eyespotcorp.com
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