A. DON’T UPLOAD ILLEGAL, ADULT, OR SPAM CONTENT.
B. YOU CAN ONLY UPLOAD WHAT YOU CREATED OR HAVE THE SOLE RIGHTS TO DISTRIBUTE.
C. DON’T TRY TO ARTIFICIALLY INCREASE THE HITS YOUR CONTENT RECEIVES. EVEN THE SUSPICION OF THIS ACTIVITY CAN TRIGGER DELETION OF YOUR UPLOADS, AND SUSPENSION OF YOUR ACCOUNT..
D. WE LOG ALL INCOMING IP ADDRESSES FOR THE SECURITY AND SAFETY OF OUR USERS AND WILL NOT HESITATE TO PROSECUTE ANY HACK OR ATTEMPT TO EXPLOIT OUR SYSTEM OR CODE BY ANY MEANS.
E. SHARECG CAN DELETE UPLOADED CONTENT OR CANCEL YOUR ACCOUNT FOR ANY REASON WITHOUT NOTICE. A SINGLE ACTION THAT VIOLATES THIS USER AGREEMENT CAN WARRANT CENCELLATION.
F. SHARECG RESERVES THE RIGHT TO CHANGE THESE TERMS OF AGREEMENT AT ANY MOMENT.
This is an agreement between Internet Business Systems, Inc. and SHARECG (“SHARECG”) and You. What we will refer to after this as the “Agreement” includes this document headed “SHARECG Member Agreement” and also any policies, guidelines and amendments that may be incorporated into this SHARECG Member Agreement or presented to You from time to time. This Agreement describes the terms and conditions on which SHARECG offers You participation on SHARECG’s file sharing program and related services. “You” (and “Your”, as applicable) means the person or entity identified in the registration form submitted.
PLEASE READ THIS AGREEMENT CAREFULLY. This Agreement sets forth the legally binding terms and conditions for Your participation in the SHARECG File Sharing Program. By registering, clicking “I Agree” or otherwise participating in the SHARECG File Sharing Program, You represent to SHARECG that You are at least eighteen (18) years of age or otherwise capable of entering into and performing legal agreements, and that You agree to be bound by the following terms and conditions. If You register on behalf of a business, You represent to SHARECG that You have the authority to bind that business and Your acceptance of this Agreement will be treated as acceptance by that business. In that event, “You” and “Your” will refer to that business in this Agreement. If You do not accept this Agreement in full, please do not register for or participate in the SHARECG File Sharing Program.
With this in mind, You agree to and acknowledge the following:
1. The SHARECG File Sharing Program
The SHARECG File Sharing Program permits You to participate in, use and/or obtain access to the SHARECG Products in a variety of ways. These include but are not limited to the following:
* (a) Participation as a content creator, by creating and submitting Content for distribution in the SHARECG Network. After this, we refer to anyone who participates in this way as an “Submitter”.
* (b) Participation as an advertising sponsor, by creating and submitting advertising content for distribution in the SHARECG Network. After this, we refer to anyone who participates in this way as a “Sponsor”.
* (c) Participation as a member of SHARECG, by submitting reviews, communicating with other SHARECG File Sharing Program members and sharing or submitting other information. After this, we refer to anyone who participates in this way as a “Community Member”.
* (d) Access to online management services relating to Your content. After this, we refer to such use as “Management Services.”
* (e) Access to trial features, products and services (“Trial Features”).
We will refer to any participation in the SHARECG File Sharing Program and any use of or access to the SHARECG Products as “Participation” or to “Participate.” (Participation includes but is not limited to items (a) through (e) above.) Your use of or access to certain features of the SHARECG File Sharing Program may require You to agree with and accept additional terms and conditions. If there is a conflict between this Agreement and any additional terms and conditions of use posted for a specific feature, those additional terms and conditions shall have precedence with respect to Your use of or access to that feature.
2. Registration
To Participate, You must register online with SHARECG at the SHARECG Site and create a unique, password-protected account (“Account”). You will be responsible for safeguarding Your password. You also take full responsibility for any actions under Your password and Account, whether authorized by You or not. You are responsible for keeping Your Account information current. You acknowledge and agree that SHARECG will have no responsibility or liability, directly or indirectly, for: (i) the availability of the external websites or resources of such third party affiliates or partners; (ii) the acts or omissions of, or any damage or loss caused or alleged to be caused by or in connection with Your use of or reliance on, such third party affiliates or partners, regarding Your Account; or (iii) failure to deliver notices or payments that result from inaccurate Account information.
3. Modifications
SHARECG, at any time and from time to time, may modify this Agreement and the Policies, or may modify, suspend or discontinue, temporarily or permanently, the SHARECG Products or the SHARECG File Sharing Program (or any parts thereof). Modifications to this Agreement and Policies will be posted on the SHARECG Site or made in compliance with any notice requirements set forth in this Agreement. Modifications to the SHARECG Products or the SHARECG File Sharing Program will be effective upon posting to the SHARECG Site. You agree that SHARECG shall not be liable to You or to any third party for any modification, suspension or discontinuance of this Agreement, the Policies, the SHARECG Products or the SHARECG File Sharing Program. By continuing to Participate after SHARECG has posted any such modifications or provided any required notices, You agree to be bound by the modifications. Please review this Agreement and the Policies regularly so that You will be apprised of any modifications. If any modification is not acceptable to You, Your only recourse is to cease Participation.
4. Participation
At the time of registration, You will be given the opportunity to select one or more features of the SHARECG File Sharing Program in which You wish to Participate. To remain eligible for Participation, You must at all times comply with the terms and conditions of this Agreement and all Policies. SHARECG reserves the right to refuse Participation to any applicant or participant at any time in its sole discretion.
(a) Submitters. If You Participate as a Submitter, You are solely responsible for all content You transmit or submit to SHARECG or through the SHARECG File Sharing Program, whether created by or for You, including but not limited to 3d art, 2d art, videos, animations, tutorials, materials/shaders, 3d models, scripts or other material (collectively, “Content”). SHARECG disclaims all liability relating to Your Content. As more fully set forth in (“Representations and Warranties”), You may not submit Content that contains any pornographic, infringing, hate-related, violent or illegal content.
In connection with SHARECG’s marketing, distribution and provision of the SHARECG File Sharing Program as contemplated herein, You permit SHARECG to:
* – host, index and cache Your Content;
* – tag Your Content with information that will be used by SHARECG to identify it as Your Content;
* – distribute, or have distributed, Your Content in the SHARECG Network; and
* – engage in such further actions regarding Your Content as may be necessary or appropriate in order to effect the purposes of the SHARECG File Sharing Program.
SHARECG may, in its sole discretion:
* reject, suspend access to or remove any of Your Content from the SHARECG Network at any time that SHARECG deems it unsuitable for the SHARECG Network or for distribution in the SHARECG Network
During the Term, You may request that SHARECG remove any or all of Your Content from the SHARECG Site. Upon such a request to remove Content, SHARECG will use reasonably commercial efforts to ensure the Content is removed from the SHARECG Site within seventy-two (72) hours following Your request. However, You acknowledge and agree that SHARECG shall have no obligation to attempt to remove from distribution:
* any of Your Content that is otherwise publicly available through the Internet or other publicly accessible medium
In the event that SHARECG fails to remove such requested Content from the SHARECG Site within seventy-two (72) hours after Your request for removal, SHARECG shall not be liable to You for damages or charges of any kind in an amount greater than ten dollars ($10). For the avoidance of doubt, SHARECG cannot, and has no obligation to, remove any of Your Content that has been distributed through the SHARECG Network, and the Creative Commons BY-NC-ND License (defined below)that You have granted in Section (“Submitters: Your Irrevocable Non-Commercial Distribution License”) herein shall remain in effect for this purpose only.
* You may download, view, “frame,” “mirror” or otherwise copy portions of the SHARECG site in accordance with (“Community Members: Your License to SHARECG”), provided that You may not modify or alter the SHARECG site, any SHARECG technology, any Content and Ads or any materials available on the SHARECG site in any way other than as expressly permitted by Section 10(k).
SHARECG reserves the right, in its sole and absolute discretion, for any reason or no reason, to revoke Your license to “frame,” “mirror” or otherwise copy portions of the Site, and Ads not owned by You at any time, effective immediately once we give You notice of such revocation.
Community Members. If You register to Participate, You will automatically become a Community Member. As a Community Member, You may communicate with SHARECG and other Account holders, post or publish comments or rating features regarding Content and Ads, SHARECG Products or the SHARECG File Sharing Program in, as may be made available at SHARECG’s complete discretion, a discussion group, chat area, bulletin board, feedback area, news group, email functionality or other communication feature. All such communications are referred to after this as “Member Comments”. You are solely responsible for all Member Comments You transmit or submit to SHARECG or through the SHARECG File Sharing Program, whether created by or for You, including but not limited to websites and content proximately reachable from such Member Comments. SHARECG disclaims all liability relating to Your Member Comments. As more fully set forth in (“Representations and Warranties”), You may not submit any Member Comments that contain any sexually suggestive, pornographic, infringing, hate-related, violent or illegal content.
5. Participation at Your Own Risk
Your Participation is at Your own risk. Although the SHARECG File Sharing Program enables users to connect and share Content and Member Comments with one another and with end users or viewers, SHARECG has no responsibility to control of monitor any information or exchanges between or among users. SHARECG does not control the Content, Ads and Member Comments made available through the SHARECG Products. Some people may find Content, Ads and Member Comments objectionable, inappropriate or offensive. SHARECG does not control or guarantee, nor is SHARECG responsible for, the truth, accuracy, ownership, completeness, integrity, safety, timeliness, quality, appropriateness, legality or applicability of any Content, Ads and Member Comments. SHARECG assumes no responsibility for monitoring any Content, Ads or Member Comments or conduct during Participation. If SHARECG chooses, at any time in its sole discretion, to monitor (in whole or in part) Content, Ads, Member Comments or conduct during Participation, SHARECG nonetheless assumes no responsibility for Content, Ads and Member Comments, no obligation to modify or remove any Content, Ads or Member Comments and no responsibility for conduct during Participation. You agree that SHARECG has no responsibility or liability for the deletion or failure to store, maintain or transmit any Content, Ads or Member Comments.
6. Privacy
By participating, You understand that when You view or interact with SHARECG Products and features of the SHARECG File Sharing Program (for example, by clicking on an Ad), SHARECG may collect (and You may provide to SHARECG) information that is specific to how You (or Your end users) access and use the Internet as well as how You (or Your end users) view and/or interact with SHARECG Products (“Access Information”). Access Information may include, but is not limited to, an IP address, the website a user is logged onto, the geographic location of the IP address the user is using to access the Internet, the type of browser used, which and how many web pages have been viewed by the user, search terms used, referring/exit pages, platform type and date/time information. This information is anonymous and does not personally identify a user. SHARECG uses Access Information for the purpose of monitoring delivery and distribution of the Content and Ads, improving Ad targeting, delivery and reporting, improving the SHARECG Products and the SHARECG File Sharing Program and measuring their effectiveness with users. Access Information may be shared with SHARECG’s Third Party Services Providers, affiliates, business partners, sponsors, advertisers, employees, customers and distribution partners.
8. Proprietary Rights & Licenses
(a) SHARECG’s Ownership Rights. SHARECG and its licensors own all right, title and interest, including without limitation all worldwide intellectual property rights in the SHARECG Products and the SHARECG File Sharing Program, and all such rights to all derivative works or enhancements of, in and to, or relating to, the SHARECG Products and the SHARECG File Sharing Program. By entering into this Agreement or by Your Participation, You will not acquire any intellectual property or similar rights in the SHARECG Products, the SHARECG File Sharing Program or related products and services. You agree You will not (i) remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the SHARECG Products, the SHARECG File Sharing Program or related products and services; or (ii) use SHARECG’s name, logo, trademark, trade names or service marks except as expressly permitted in this Agreement without SHARECG’s prior written consent.
(b) Your Ownership Rights. Subject to the licenses You are granting in this Agreement, You retain all right, title and interest, including without limitation all worldwide intellectual property rights, in and to Your Content that is submitted, posted or displayed by You on or through the SHARECG Products and SHARECG File Sharing Program. SHARECG shall not acquire any right, title or interest in or to such Content, except as provided herein. Any rights not granted by You herein are deemed retained by You. As more fully described in Section (“Term and Termination”), You have the right to terminate this Agreement and revoke certain licenses You are granting in this Agreement, with respect to all Content You provide or with respect to particular works You provide. If You choose to revoke any of Your revocable licenses, SHARECG will use commercially reasonable efforts to remove Your Content from the SHARECG Site reasonably promptly upon receipt of Your notice of revocation and will make reasonable efforts to notify authorized Syndicators (i.e., those distributing Your Content with Ads) for whom it has current and up-to-date information. You acknowledge that You are aware that SHARECG has limited practical ability to control or monitor possible infringement of Your intellectual property rights by other parties and that SHARECG assumes no responsibility for controlling or monitoring such intellectual property rights. In addition, SHARECG is not responsible for enforcing Your intellectual property or for suing or taking other legal action against. You or a third party licensor, as appropriate, are responsible for protecting Your intellectual property rights. SHARECG may, at its discretion, choose to assist You in connection with protecting or enforcing Your intellectual property rights in a particular instance; in such event, this does not mean that SHARECG has an obligation to do so in any other instance and this does not mean that SHARECG has an obligation to effectively protect or enforce Your intellectual property rights.
(c) SHARECG’s Trademark License to You. During the term of this Agreement, and subject to Your compliance with the terms and conditions of this Agreement, You will have the right to use the trade names, trademarks, logos and designations in or associated with the SHARECG Network (the “SHARECG Marks”) solely for purposes of identifying SHARECG and solely in connection with Your permitted activities under this Agreement. You agree that the SHARECG Marks and all associated goodwill are and will remain the sole property of SHARECG, that any goodwill generated as a result of Your licensed use of SHARECG Marks belongs exclusively to SHARECG and inures solely to the benefit of SHARECG, and that Your use of SHARECG Marks is subject to SHARECG’s control of the quality of any products or services with respect to which You may be authorized to use SHARECG Marks.
(d) Submitters: Your Revocable Limited License to SHARECG. In connection with Your Participation as a Submitter are made available to and selected by You, in order to allow SHARECG to distribute Your Content in the SHARECG Network through Distribution as selected by You, You hereby grant (or warrant that the owner of such rights has expressly granted) to SHARECG a worldwide, revocable, non-exclusive, sublicensable, limited right and license to use, reproduce, modify and adapt (solely to permit SHARECG to conform and adapt Your Content to technical requirements, including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies), excerpt, publish, transmit, publicly perform, display, reference, store, host, index and cache, in any form, medium or technology now known or later developed, any Content, Member Comments or materials You submit to SHARECG, in whole or in part, whether created by or for You, by any method, and in any and all media, whether currently existing or hereafter developed. You understand that Your revocable limited license to SHARECG includes Your grant to SHARECG of the right to create, display and distribute (as set forth more fully in the previous sentence) a derivative work based on Your Content, which derivative work is comprised solely of Your Content as adapted to include SHARECG’s computer software whose functions are to identity Your submission as Your Content, to assist SHARECG in properly tracking and calculating any revenue amounts that You may earn, and to effect related functions. (After this we refer to the aforementioned derivative work as “Your SHARECG Content.” SHARECG’s rights, with respect to Your SHARECG Content, are limited to its rights set forth in this Agreement, and SHARECG expressly waives and disclaims, with respect to You, any other rights it might otherwise hold to Your SHARECG Content under copyright law. As more fully described in Section (“Term and Termination”), this license will terminate: (i) with respect to any Content that You have requested be removed in accordance with Section (“Participation (Submitters)”); and (ii) upon termination of the Agreement in accordance with Section (“Term and Termination”).
(e) Submitters: Your Revocable Online Commercial Distribution License. In connection with Your Participation as a Submitter, in order to allow SHARECG and others to distribute Your SHARECG Content in the SHARECG Network through Online Distribution, You hereby grant (or warrant that the owner of such rights has expressly granted) to SHARECG and Third Party Service Providers a limited, revocable right to use, reproduce, publicly perform, distribute and display Your SHARECG Content for monetary compensation or commercial purposes in the SHARECG Network as contemplated by this Agreement and to engage in such further actions relating to and in connection with Your Content as may be necessary or appropriate in order to effect the purposes of the SHARECG Network.
(f) Submitters: Your Irrevocable Non-Commercial Distribution License. In connection with Your Participation as a Submitter, You hereby grant (or warrant that the owner of such rights has expressly granted) to any persons or entities who want to use Your SHARECG Content in a manner not intended for commercial advantage or private monetary compensation, a right to use, reproduce, publicly perform, distribute and display Your SHARECG Content for non-commercial purposes pursuant to the terms and conditions of the Creative Commons “Attribution-NonCommercial-NoDerivs 2.5” license located at http://creativecommons.org/licenses/by-nc-nd/2.5/legalcode (the “Creative Commons BY-NC-ND License”). Insofar as SHARECG holds any rights to Your SHARECG Content pursuant to Section of this Agreement, SHARECG also grants the rights stated in this paragraph to such persons or entities pursuant to the Creative Commons BY-NC-ND License.
(g) Community Members: Your License to SHARECG. In connection with Your Participation as a Community Member, by uploading, submitting, emailing, posting, publishing or otherwise transmitting any Member Comments, You hereby grant (or warrant that the owner of such rights has expressly granted) SHARECG a worldwide, royalty-free, non-exclusive, sublicensable, perpetual and irrevocable right and license to use, reproduce, modify, adapt, create derivative works of, perform, display, distribute, publish and transmit such Member Comments in any form, medium or technology now known or later developed. You warrant that any Member Comments You submit do not infringe upon any rights, including intellectual property rights, of any other parties. In addition, You warrant that all so-called moral rights in the Member Comments have been waived.
(h) Your Information. You authorize SHARECG to use, as applicable to Your Participation, Your trademarks, service marks, trade names, proprietary logos, domain names, usage statistics and any other source or business identifiers (collectively, “Your Information”) in presentations, as a feature on the SHARECG Site, marketing materials, customer lists and financial reports, in connection with SHARECG’s marketing, distribution and provision of the SHARECG Products and SHARECG File Sharing Program. You also grant SHARECG a non-exclusive license to index and cache Your Information and any portion thereof, by manual or automated means (including with web spiders and crawlers), for purposes of promoting, providing and improving the SHARECG Products and the SHARECG File Sharing Program and for soliciting other distributors, publishers, creators and advertisers to use the SHARECG Products and Participate. You acknowledge and agree: (i) that You understand that You may provide, and SHARECG may collect, Your Information during Your Participation; and (ii) that Your Information may be shared with SHARECG’s affiliates, business partners, sponsors, advertisers, employees, customers and distribution partners.
(i) No Endorsement; No Publicity. SHARECG does not endorse, verify, evaluate or guarantee any information or Content or Ads provided by users, including You, and nothing shall be considered as an endorsement, verification or guarantee of any information or Content or Ads. You shall not create or distribute information, including but not limited to advertisements, press releases or other marketing materials, or include links to any sites which offer such information, (i) containing or suggesting an endorsement by SHARECG of You or Your Content or Ads; or (ii) relating to this Agreement, without the prior review and written approval of SHARECG. Notwithstanding the foregoing, You may accurately disclose and describe Your Participation and Your Content (for example, describing and promoting Your Content on Your blog or in emails).
(j) Reserved Rights. You will not attempt to modify, prepare derivative works from, translate, adapt, edit, decompile, disassemble or reverse engineer any specifications, technology, applications or software programs provided or made accessible to You or used by SHARECG in connection with the SHARECG Products and SHARECG File Sharing Program in any way, unless expressly authorized in writing by SHARECG. SHARECG may modify the format and look and feel of the SHARECG Products and SHARECG File Sharing Program from time to time. Excluding Your Content or Ads, You agree to assign and hereby do assign to SHARECG and its licensors (as applicable) all right, title and interest in and to any part of the SHARECG Products and SHARECG File Sharing Program that You may have or acquire during Your Participation. You warrant that all so-called moral rights You may have in the SHARECG Products or SHARECG File Sharing Program are hereby waived. You will not delete, remove, obscure or in any manner alter the copyright, trademark, license or other proprietary rights notices affixed to or contained in the SHARECG Products or SHARECG File Sharing Program. Any rights not expressly granted herein are deemed withheld.
9. Action Fraud
You will not, and will not authorize any party to, directly or indirectly, generate automated, fraudulent or otherwise invalid Advertising Actions. If, in SHARECG’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 Ad, or any other fraudulent means, to increase impressions, skew results or imitate a legitimate user of a web browser, for example, by clicking on content for the purpose of generating an improper click value and generating revenue (collectively, “Action Fraud’), SHARECG may suspend or otherwise disable Your Account until such time as the matter is resolved to SHARECG’s satisfaction.
10. Adult Content
You will not use the SHARECG Site or SHARECG File Sharing Program 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 the SHARECG Site or SHARECG File Sharing Program any Content, Ads or Member Comments, that is of, or is suggestive of, a sexual, pornographic or erotic nature (“Adult Content”). Examples of content that SHARECG, in its sole discretion, considers to be Adult Content include, but are not limited to material that is pornographic, obscene, indecent or profane in its use of sexual language or description or depictions of sexual acts. If SHARECG finds Content that it determines, in its sole discretion, contains Adult Content, SHARECG may, without notice, remove or block access to such Content. SHARECG reserves the right to suspend or cancel at any time and without notice Your Account, or deduct or withhold payments related to any Content or Ads, that SHARECG, in its sole discretion, determines to be in violation of this Section. SHARECG will take all appropriate steps with Content that SHARECG believes violates applicable laws, including cooperation with any law enforcement investigation. If You see content that You believe is Adult Content or is in violation of law or this Section, You should contact SHARECG immediately.
11. Copyright Infringement
You will not use the SHARECG Site or SHARECG File Sharing Program for any purpose or in any manner that infringes the copyrights of any third party, nor will You upload, email, post, publish, distribute, transmit, submit or otherwise make available through the SHARECG Site or SHARECG File Sharing Program any content, that infringes the copyrighted works or violates the intellectual property rights of any third party. In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”) (the text of which may be found on the U.S. Copyright Office website at “http://lcweb.loc.gov/copyright/”), it is SHARECG’s policy to respond to notices of any actual or alleged infringement that are reported to SHARECG’s “Designated Copyright Agent” and that comply with the DMCA. It is SHARECG’s policy to terminate the Accounts of users of repeat infringers or of users repeatedly charged with infringement, in appropriate circumstances. If You believe that a work has been copied in a way that constitutes copyright infringement, You should send a notice of infringement to SHARECG immediately: 595 Millich Dr., Suite 216, Campbell, CA 95008.
12. Term and Termination
(a) Termination. SHARECG may immediately terminate this Agreement, or cancel the SHARECG File Sharing Program, for any reason at any time. You may terminate this Agreement at any time by disabling Your Account or providing notice to SHARECG as set forth in Section 15 (“Notifications”).
(b) Effect of Termination. General. Upon termination or expiration of this Agreement, Your right to Participate (including but not limited Your right to receive compensation, if any, as a Submitter) will automatically terminate. In the event of termination, Your Account will be disabled and You may not be granted access to Your Account or any files or other content contained in Your Account although residual copies of information may remain in the SHARECG File Sharing Program system. Upon termination: (i) all licenses granted to You hereunder will immediately terminate. Upon termination, SHARECG may continue to use any user analytics collected hereunder for solely internal (including archival) purposes, and all related licenses You have granted SHARECG shall remain in effect for this purpose only. In the event that this Agreement or the SHARECG File Sharing Program expires or is terminated, SHARECG shall not be obligated to return any materials to You.
(c) Survival. The rights and obligations contained in Section (“SHARECG’s Ownership Rights”) and (“Your Ownership Rights”), Section (“Submitters: Your Irrevocable Non-Commercial Distribution License”), Section (“Syndicators: Your Right to Distribute Other Materials”), Section (“Effect of Termination”), Section (“Survival”), Section (“Confidential Information”), Section (“Indemnity”), Section (“No Guarantees; Warranty Disclaimers”), Section (“Limitation of Liability”) and Section (“General”) of this Agreement will survive termination or expiration of this Agreement for any reason.
13. Notifications and Other Email
SHARECG may provide notices to You by email to the email address specified in Your Account, by posting a message to Your Account interface or by posting a message to the SHARECG Site, and is deemed received when sent (for email) or no more than fifteen (15) days after having been posted (for messages to Your Account interface or on the SHARECG Site). Any notices to SHARECG must be sent either: (i) via first class or air mail or overnight courier to SHARECG, 595 Millich Dr., Suite 216, Campbell, CA 95008; or (ii) via confirmed facsimile (fax number 408-260-0011), with a copy sent via first class or air mail or overnight courier, and are deemed given upon receipt.
13a. On becoming a registered user of SHARECG you opt in to receive third party emailed offers and other information from our partners. All email offers will contain a link to allow you to immediately and permanently opt out of this service.
14. Confidential Information
During the term of this Agreement, You may receive confidential information from SHARECG related to Your Participation. Except as expressly authorized by this Agreement or necessary for performance under this Agreement, You will use reasonable efforts to maintain the confidentiality of all such information and You will not disclose such information without the prior written consent of SHARECG. In no event will You use less effort to maintain the confidentiality of such information than You ordinarily use with respect to Your own confidential information. The foregoing will not restrict You from disclosing confidential information of SHARECG: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that if You are required to make such a disclosure, You give reasonable and timely notice to SHARECG to contest such order or requirement; and (b) on a confidential basis to Your legal or financial advisors, or prospective acquirers or investors. Examples of SHARECG confidential information include without limitation: (i) all software, technology, services, algorithms, search engines and search indices, programming, specifications, materials, guidelines and documentation relating to the SHARECG Products and the SHARECG File Sharing Program; (ii) click-through or Advertising Action rates, conversion rates and other statistics relating to the SHARECG Products and the SHARECG File Sharing Program; and (iii) Trial Features or any other information designated in writing by SHARECG as “Confidential” or an equivalent designation. Confidential information does not include information that: (w) is or becomes generally known to the public through no fault of or breach of this Agreement by You; (x) is rightfully known by You at the time of disclosure without a confidentiality obligation; (y) is independently developed by You without use of SHARECG’s confidential information; or (z) You rightfully obtain from a third party without disclosure restrictions.
15. Representation & Warranties
(a) Your Authority. You represent and warrant to SHARECG that: (i) You have all requisite power and authority, corporate or otherwise, to enter into this Agreement, conduct Yourself and Your business and to execute, deliver, and perform all of Your obligations under this Agreement; (ii) You have provided, and will continue to provide, information that is correct and current; (iii) You are the owner-or the authorized agent of the owner-of Your Content (if You are a Submitter) and Your Member Comments (if You are a Community Member) and have full technical and editorial control of the same; (iv) You have the right to grant the licenses granted under this Agreement; (v) 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; (vi)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; (vii) You will Participate solely for the purposes intended and expressly permitted.
(b) Your Materials. You represent and warrant that Your Content (if You are a Submitter), Your Ads (if You are a Sponsor), Your Member Comments (if You are a Community Member) or any other information or material You submit or make available to others during Your Participation, and SHARECG’s use thereof pursuant to this Agreement, (i) do not and will not, directly or indirectly, violate, infringe or breach any duty toward or rights of any person or entity, including without limitation any copyright, trademark, service mark, trade secret, other intellectual property, publicity or privacy right; (ii) do not contain Adult Content; (iii) are not fraudulent, misleading, hateful, tortuous, defamatory, slanderous, libelous, abusive, violent, threatening, profane, vulgar or obscene; (iv) do not 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 SHARECG Products or Participation in the SHARECG File Sharing Program; (v) do not 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); (vi) are not illegal, unlawful or contrary to the laws or regulations in any state or country where, as applicable, Your Content, and Your Ads are created, displayed or accessed; (vii) do not 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 Participation in the SHARECG File Sharing Program or disable, damage or erase any portion of the Content or Ads processed or stored therein; or (viii) do not constitute unsolicited bulk email, junk mail, spam or chain letters.
(c) Your Actions. You represent and warrant that You will not, and will not authorize or encourage any third party to, directly or indirectly: (i) obtain any information or materials relating to the SHARECG Products or the SHARECG File Sharing Program through any means not intentionally made available by SHARECG to You, or attempt to gain unauthorized access to SHARECG’s database, technology, computer systems or networks associated with the SHARECG Products or the SHARECG File Sharing Program; or (ii) engage in any activity that disrupts, diminishes the quality of, interferes with the performance of or impairs the functionality of the SHARECG Products and the SHARECG File Sharing Program.
(d) Cooperation. You agree to cooperate fully with SHARECG to investigate any suspected or actual activity that is in breach of this Agreement. You acknowledge that any violation of this Section (“Representations and Warranties”) is a material breach of this Agreement and that SHARECG may pursue any and all applicable legal and equitable remedies against You, including an immediate suspension of Your Account or termination of this Agreement, and the pursuit of all available civil or criminal remedies. SHARECG reserves the right to investigate, at its own discretion, any activity that SHARECG suspects may violate this Agreement. SHARECG may, as applicable, withhold payment, notify Your bank, the authorities, suspend or cancel Your Account and/or take appropriate actions at any time without notice to You if SHARECG, in its sole discretion, (i) suspects that You have breached or failed to comply (in full or in part) with any provision of this Agreement or any Policies or rules established by SHARECG; or (ii) suspects that Your actions may be illegal or cause liability.
16. Links
The SHARECG Products and the SHARECG File Sharing Program may provide, or third parties may provide, links to other websites or resources. Because SHARECG has no control over such sites and resources, You acknowledge and agree that SHARECG is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, services or other materials on or available from such websites or resources. You further acknowledge and agree that SHARECG 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 website or resource.
17. Indemnity
You will indemnify, defend and hold SHARECG and its officers, directors, employees, shareholders, successors, agents, affiliates, subsidiaries and applicable third parties (e.g., relevant content creators, advertisers, syndication partners, referral partners, service providers, licensors, licensees, consultants and contractors) (collectively, the “SHARECG Entities”) harmless from and against any claims, liabilities, losses, costs, damages or expenses (including reasonable attorneys’ fees and costs) directly or indirectly arising out of or in any way relating to: (i) Your gross negligence or willful misconduct; (ii) Your Content (if You are a Submitter), Your Ads (if You are a Sponsor), Your Member Comments (if You are a Community Member) or any other information or material You submit during Participation; (iii) Your conduct, including Your use of SHARECG Products or any other actions related to Your Participation; (iv) any actual violation or breach of this Agreement, or allegation of such violation or breach by a third party, including breach of any representation made by You hereunder; or (v) the alleged or actual violation or infringement of any intellectual property, privacy, publicity, confidentiality or proprietary rights of any third-party as a result of any action or Participation by You (collectively, the “Claims”). You are solely responsible for defending any such Claims, and for payment of losses, costs, damages or expenses resulting from the foregoing to both a third party and to the SHARECG Entities. SHARECG shall have the right to withhold any payments due to You, if any, to offset liabilities and expenses covered hereunder. SHARECG shall have the right, in its sole discretion, to select its own legal counsel to defend SHARECG from any Claims (but by doing so shall not excuse Your indemnity obligations) and You shall be solely responsible for the payment of all SHARECG’s reasonable attorneys’ fees incurred in connection therewith. You shall notify SHARECG immediately if You become aware of any actual or potential claims, suits, actions, allegations or charges that could affect Your or SHARECG’s ability to fully perform their respective duties or to exercise its rights under this Agreement. You shall not, without the prior written approval of SHARECG, settle, dispose or enter into any proposed settlement or resolution of any Claim (whether having been finally adjudicated or otherwise) brought against You, if such settlement or resolution results in any obligation or liability for SHARECG.
18. No Guarantees; Warranty Disclaimer
(a) No Guarantees. SHARECG makes no guarantees: (i) regarding the availability, operation, maintenance, timing or delivery of the SHARECG Products, the SHARECG File Sharing Program or any distribution channel (or any portion thereof); (ii) that Participation will secure any success or generate any revenue or the amount of payment (if any) to be made hereunder; (iii) that Content or Ads will be distributed in the SHARECG Network; (iv) regarding the relevancy of any Ads to Content; or (v) regarding Advertising Action rates, including the level or number of clicks, conversions to sales or impressions on any Ad, in connection with Content.
(b) Warranty Disclaimers. Your use of the SHARECG Products and Participation in the SHARECG File Sharing Program are at Your sole discretion and risk. The SHARECG Products and the SHARECG File Sharing Program, and all materials, information, products and services included therein, are provide on an “AS IS” and “AS AVAILABLE” basis without warranties of any kind.
THE SHARECG ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SHARECG PRODUCTS AND THE SHARECG FILE SHARING PROGRAM, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING OR COURSE OF PERFORMANCE.
The SHARECG Entities disclaim any warranties: (i) regarding the security, accuracy, reliability, timeliness and performance of the SHARECG Products or the SHARECG File Sharing Program; (ii) regarding the goods, services, advise, information or links provided by any Third Party Services Providers, Submitters, Sponsors, Syndicators or Community Members; (iii) that the SHARECG Products or the SHARECG File Sharing Program will meet Your requirements; or (iv) that the SHARECG Products or the SHARECG File Sharing Program will be error-free or that any errors will be corrected. No advice or information, whether oral or written, obtained by You from SHARECG or from Your Participation, shall create any warranty not expressly stated in this Agreement.
SHARECG assumes no responsibility for: (i) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any communication; and (ii) any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the SHARECG Products or the SHARECG File Sharing Program or combination thereof, including any injury or damage to You or to any person’s computer related to or resulting from Participation.
Under no circumstances shall SHARECG be responsible for any loss or damage, including personal injury or death, resulting from Participation, from any Content, Ads or Member Comments posted on or through the SHARECG Products or the SHARECG File Sharing Program, or from the conduct of any users of the SHARECG Products or Participation in the SHARECG File Sharing Program, whether online or offline.
Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to You.
19. LIMITATION OF LIABILITY
THE SHARECG ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA OR PROFITS, COST OF PROCURING SUBSTITUTE PRODUCTS OR BUSINESS INTERRUPTION), WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SHARECG PRODUCTS, YOUR PARTICIPATION IN THE SHARECG FILE SHARING PROGRAM OR USE OF ANY MATERIALS AVAILABLE TO YOU FROM OR THROUGH THE SHARECG FILE SHARING PROGRAM (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SHARECG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SHARECG’S LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO SHARECG FOR THE SHARECG PRODUCTS OR PARTICIPATION IN THE SHARECG FILE SHARING PROGRAM.
You acknowledge that SHARECG permits Your Participation relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain and of the allocation of risks between the parties. SHARECG shall no liability for any failure or delay in the performance of its obligations hereunder on account of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, extraordinary Internet congestion or extraordinary connectivity issues experienced by major telecommunications providers and unrelated to SHARECG’s infrastructure or connectivity to the Internet, or failure of any Syndication Site or third party distribution partner, (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, SHARECG will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues.
Some states or jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to You.
20. General
(a) Governing Law; Arbitration. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is excluded and does not apply to this Agreement. Except as expressly set forth in subsection (b) below (“Injunctive Relief”), any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall decided by binding arbitration. The arbitrator shall apply California law to the merits of any dispute or claim. The decision of the arbitrator shall be final and unappealable. In the event any action is brought by either party in connection with this Agreement, the substantially prevailing party will be entitled to recover from the other party all the costs, attorneys’ fees and other expenses reasonably incurred by such party. All offers, promises, conduct and statements, whether oral or written, made in the course of the arbitration by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the arbitration.
(b) Injunctive Relief. Notwithstanding the “Governing Law; Arbitration” section above, You agree that certain breaches by You would cause irreparable injury to SHARECG, for which there are no adequate remedies at law, and nothing in this Section shall be deemed to prevent or delay SHARECG’s attempt to seek a temporary restraining order, preliminary injunction, specific performance or other interim or conservatory relief from any court having jurisdiction, without any abridgment of the power of the arbitrator, for Your breach of: (i) Section (“SHARECG’s Ownership Rights”); (ii) Section (“Copyright Infringement”); and (iii) Section (“Confidential Information”).
(c) Assignment. You may not assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of SHARECG. Any attempted assignment in violation of this Section will be null and void and of no force or effect. SHARECG may assign this Agreement freely at any time without notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
(d) Waiver; Severability. The failure to require performance of any provision shall not affect SHARECG’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any portion of this Agreement is found to be unenforceable, such portion will be modified to reflect the parties’ intention and only to the extent necessary to make it enforceable, and the remaining provisions of this Agreement will remain in full force and effect.
(e) Export Restrictions/Legal Compliance. You agree to comply with all United States and other applicable export laws and related restrictions and regulations, and not to directly or indirectly export, provide or otherwise make available the services and products of SHARECG in violation of any such export laws, unless any required prior authorizations or necessary approvals are obtained by You, at Your expense, from the applicable United States or foreign authority.
(f) Entire Agreement. This Agreement constitutes the entire and exclusive understanding and agreement between You and SHARECG regarding this subject matter, and supersedes any and all prior or contemporaneous agreements or understandings, written and oral, between You and SHARECG relating to this subject matter. You may be subject to additional terms and conditions that may apply when You use or access certain features of the SHARECG File Sharing Program.
(g) Relationship. You and SHARECG are independent contractors, and this Agreement, including but not limited to submission or distribution of any Content or Ads, will not, in whole or in part, establish any relationship of partnership, joint venture, employment, franchise or agency between the You and SHARECG. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Neither party is authorized to act as an agent or representative of the other or for or on behalf of the other party in any capacity other than as expressly set forth in this Agreement. Neither party shall in any manner advertise, represent or hold itself (or any of its agents) out as so acting or being authorized so to act, or incur any liabilities or obligations on behalf of, or in the name of, the other party, unless specifically provided for in this Agreement. Moreover, each party shall be solely responsible for the payment of all of its own taxes, assessments and all other similar withholdings from or assessments on any monies paid hereunder or in connection with the transactions contemplated hereby.
(h) Reserved Rights. SHARECG reserves the right to change, in whole or in part, the names, logos, presentation and display of the SHARECG Member Agreement, the SHARECG File Sharing Program and the SHARECG Products at any time in its sole discretion.
