VideoSurf License Agreement for Application Programming Interface

This License Agreement for Application Programming Interface ("Agreement") is entered into by and between you ("you") and VideoSurf Inc. ("VideoSurf") regarding your use of all aspects of this online information service (this “Web Site”) and/or VideoSurf’s proprietary application programming interface (“API”) that is accessed through a VideoSurf-provided token (“Token”).  Please read the following information carefully before using this Web Site. The “Arbitration” section of this Agreement contains a pre-dispute arbitration clause.  By clicking “I agree,” you agree to be bound by this Agreement. If you do not agree with any part of the Agreement, do not use this Web Site or any of its contents.  VideoSurf reserves the right, in its sole discretion, to modify, alter or otherwise update this Agreement at any time, which changes will take effect not less than 30 days after posting.  VideoSurf will post the revised Agreement and provide you notice via the e-mail address you provided.  If you do not agree to the modifications, please terminate your account during that 30-day period.  By using this Web Site after the effective date of any modification, you accept the modifications.

VideoSurf API; License Grant. VideoSurf has developed this Web Site, API, and Token as an online information service that provides a mechanism to assist users who develop and publish video-related services that will be “powered by VideoSurf” and will be used solely to enable users to click on a video, image, or link and be directed to the portion of VideoSurf.com containing the corresponding video (collectively, the “VideoSurf Service”).  Subject to your full compliance with all of the terms and conditions of this Agreement, VideoSurf grants you a non-exclusive, revocable, nonsublicensable, nontransferable license to download and use the API and Token to develop, reproduce and distribute non-commercial applications that interoperate with VideoSurf.com or any other web property owned by VideoSurf.  The link from your web site(s) to VideoSurf.com must take the user directly and completely to VideoSurf.com, and no framing is permitted.  You may not install or use the API and/or Token for any other purpose without VideoSurf's prior written consent.  VideoSurf reserves the right to release modified versions of the API and to require you to use the most recent version.  VideoSurf reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the VideoSurf Service (or any part thereof) with or without notice.  You agree that VideoSurf shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the VideoSurf Service.

Disclaimer of Warranties; Limitation of Liability.  Accuracy of the information provided on or through the VideoSurf Service cannot be guaranteed and VideoSurf makes no warranties or representations as to its accuracy.  THE VIDEOSURF SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.  VIDEOSURF DOES NOT REPRESENT OR WARRANT, AND SPECIFICALLY DISCLAIMS, THAT VIDEOSURF SERVICE WILL BE AVAILABLE WITHOUT INTERRUPTION.  VIDEOSURF HAS NO RESPONSIBILITY OR LIABILITY FOR THE CONTENTS OF VIDEOSURF SERVICE OR THE RESULTS (OR LACK OF RESULTS) OF ANY VIDEOSURF SERVICE.  These warranties are hereby excluded to the fullest extent permissible by law.  In addition, VideoSurf will not be liable for any delay or failure to perform its obligations hereunder caused by an event of natural disaster, pandemics, casualty, acts of God or public enemy, riots, terrorism, governmental acts or such other event of similar nature that is beyond the reasonable control of VideoSurf.  UNDER NO CIRCUMSTANCES SHALL VIDEOSURF BE LIABLE FOR ANY DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT MAY ARISE FROM YOUR USE OF, OR INABILITY TO USE, THE VIDEOSURF SERVICE.  Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages. In such jurisdictions, our liability is limited to the greatest extent permitted by law, or amount paid to VideoSurf under this Agreement, whichever is less.

Token.  VideoSurf shall provide to you a Token that will allow you access to the API.  The Token is the property of VideoSurf and your use of the Token is subject to the terms of this API License Agreement. Each Token allows for a limited number of queries per day to the API.  Unless otherwise specified in a properly executed sales order, the query limit is determined by VideoSurf at its sole discretion.  You must use the same Token, and only one Token, at all times.  You take responsibility for any and all use of the API using the Token, if obtained directly or indirectly from you. Any right to use, copy or to retain a copy of the API and/or the Token is subject to and contingent on your full compliance with this Agreement. If you violate any part of this Agreement, your access to the API and/or the Token may be suspended or terminated without notice and you have no right to use the API and/or the Token.  You must not replace or modify the Token unless expressly directed to do so by VideoSurf.

Representations and Warranties.  You represent and warrant that:

·       you have all necessary rights in and to the site(s) to which you direct users, and you will provide and continue maintenance of such site(s) during the term of any winning search term bid;

·       you are of legal age and capacity to enter into this Agreement, including binding any third party for whom you are acting;

·       all registration information you submit is accurate and truthful and that you will promptly update such information during the term of this Agreement;

·       you will not use the API or the Token for any application that replicates or attempts to replace the essential user experience of VideoSurf web site;

·       your use of the VideoSurf Service does not violate any applicable law or regulation; and

·       you will comply with all laws and requirements with respect to the subject matter of this Agreement.

Your Responsibility for Web Site.  You shall be solely responsible for the contents of your web site(s) and the consequences of their use.  VideoSurf does not endorse your web site(s).  Except as expressly provided above, you agree that VideoSurf has no liability with respect to any searches by users or for any data transmission from VideoSurf to your site(s).  As a material obligation of this Agreement, you agree that you shall not disparage the name, image and professional reputation of VideoSurf.  You shall be responsible for directing your customers to VideoSurf for technical support if you identify that the problem arises from an issue relating to the VideoSurf web site. You will provide technical support to your users that experience problems with the portion of the transaction that takes place on your web site prior to being directed to the VideoSurf website.  This Agreement does not entitle you to any support for the API and/or the Token, unless you make separate arrangements with VideoSurf and pay all fees associated with such support.

Prohibited Uses.  VideoSurf reserves the right to take any action with respect to such information it deems necessary or appropriate in its sole discretion if VideoSurf believes that your use of the VideoSurf Service is inappropriate for the Site, may violate this Agreement, may create liability for VideoSurf, or may cause VideoSurf to lose (in whole or in part) the services of its ISPs or other suppliers, or are otherwise objectionable.  VideoSurf may also restrict, suspend, or terminate your access to all or any part of the VideoSurf Service at any time, for any or no reason, with or without notice, and without liability. You agree that your use of the VideoSurf Service will not, to the best of your knowledge:  (A) be racist, supportive of terrorist activities, defamatory, libelous, unlawfully threatening or unlawfully harassing; (B) contain nudity or a link to an “adult” website; (C) contain hidden pages or images or “web bugs” or “web beacons”; (D) solicit personal information from anyone under eighteen (18) years of age; (E) harass or advocate harassment of another person; (F) infringe any third party’s copyright, trademark, service mark, trade secret, or other proprietary rights or rights of publicity or privacy; (G) include a photograph of another person that you have posted without that person’s consent; (H) promote information, video(s) or ad(s) that you know are false or misleading or promote illegal activities or conduct that is abusive, threatening, obscene, defamatory, libelous, obscene, pornographic, or profane material, or any other content that could give rise to any civil or criminal liability under the law; (I) involve the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, “spamming” or “spimming”; or (J) violate any law or regulation (including without limitation those governing consumer protection, unfair competition, anti-discrimination or false advertising). 

Ownership.  As further explained below, you acknowledge that the VideoSurf Service, the AudienceReach Service, search technology, search result ranking technology, and all object code and the source code thereof, the visual expressions, screen formats, report formats and other design features of the VideoSurf Services and AudienceReach Services, all ideas, methods, algorithms, formulae and concepts used in developing and/or incorporated into them, all future modifications, revisions, updates, releases, refinements, improvements and enhancements of them, all derivative works (as such term is used in the U.S. copyright laws) based upon any of the foregoing and all copies of the foregoing are valuable proprietary information and, in some cases, trade secrets of VideoSurf.  VideoSurf has, shall have, and shall retain, title, exclusive ownership rights and all intellectual property rights and other interests in the VideoSurf Service, search technology, search result ranking technology, and in any copies thereof.

Our Copyrighted Materials; Intellectual Property Infringement Claims.  The copyrights in all text, images, screens, services, and other materials provided on the VideoSurf Service or by VideoSurf to developers, advertisers or other users (collectively, the "Materials") are owned by VideoSurf and/or by third parties. Except as provided herein, none of the Materials may be copied, distributed, displayed, downloaded, or transmitted in any form or by any means without the prior written permission of VideoSurf or the copyright owner.  Unauthorized use of any Materials contained on this Web Site may violate copyright laws, trademark laws, the laws of privacy and publicity, and/or other laws or regulations.  Except as expressly provided herein, VideoSurf and the third parties reserve all rights with respect to the Materials, and may pursue all legally available options under both civil and criminal laws (and may cooperate with law enforcement agencies) in the event of any violations. 

If you believe that any of the Materials infringe on your intellectual property rights, please Contact Us immediately at the address provided below, but, pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to VideoSurf’s Designated Agent. ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL NOT RECEIVE A RESPONSE [Infringement Notice]. VideoSurf will investigate your claim and take appropriate action relating to this Web Site only.  VideoSurf does not resolve disputes between third parties relating to ownership of intellectual property. 

VideoSurf Trademarks.  Trademarks and service marks that may be referred to on this Web Site are the property of VideoSurf or their respective owners. Nothing on this Web Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark without VideoSurf’s written permission.  Except as expressly permitted above, the name of VideoSurf or the VideoSurf logo may not be used in any way, including in advertising or publicity pertaining to distribution of materials on this Web Site, without prior written permission.  Any goodwill generated through your access to or use of the VideoSurf Service and AudienceReach shall inure solely to the benefit of VideoSurf. 

Prohibited Actions.  You agree not to:  (a) decompile, reverse engineer, disassemble, modify, reduce the VideoSurf Service to human perceivable form or create derivative works based upon the VideoSurf Service or any part thereof; (b) disable any licensing or control features of the VideoSurf Service; (c) introduce into the VideoSurf Service any virus, robot, electronic agent, automated system, or other code or routine intended to disrupt or damage the VideoSurf Service, or alter, damage or delete any content, or retrieve or record information about the VideoSurf Service or its users nor use the VideoSurf Service with any application that constitutes, promotes or is used in connection with spyware, adware, or other malicious programs or code; (d) merge the VideoSurf Service or content with another program or create derivative works based on the VideoSurf Service or content; (e) remove, obscure, or alter any notice of the copyright or other proprietary legends on the Web Site or content; (f) sublicense, assign, translate, rent, lease, lend, resell for profit, distribute or otherwise assign or transfer the content or access to the VideoSurf Service to others, except as expressly permitted herein; (g) use, or allow the use of, the VideoSurf Service or the content in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; or (h) otherwise act in a deceptive, fraudulent, illegal, invalid, malicious or negligent manner when using the VideoSurf Service. Except as expressly provided herein, VideoSurf and the third parties reserve all rights with respect to the VideoSurf Service, and may pursue all legally available options under both civil and criminal laws (and may cooperate with law enforcement agencies) in the event of any violations.  You acknowledge that VideoSurf may monitor any API and Token activity for the purpose of ensuring quality, improving VideoSurf products and services, and compliance with these terms. You shall not interfere with such monitoring or otherwise obscure from VideoSurf your API and Token activity.

Termination by You. You may terminate your rights under this Agreement at any time by ceasing use of the VideoSurf Service and its contents.

Termination by VideoSurf.  VideoSurf, in its sole discretion, may terminate this Agreement immediately  at any time for any reason without notice.  VideoSurf reserves the right in its sole discretion to block access or discontinue services and to investigate and take appropriate legal action against anyone who, in VideoSurf’s sole discretion, violates this Agreement, including without limitation, reporting you to law enforcement authorities.  In addition to any other remedies that may be available to VideoSurf, if you breach this Agreement, VideoSurf has right to terminate this Agreement immediately.  Your account, profile, and all associated information may be deleted and your password may be terminated without warning if VideoSurf believes that you are in breach of any of the foregoing representations and warranties.  Further, you agree that VideoSurf shall not be liable to you or any third-party for any termination of your access to the VideoSurf Service.  VideoSurf reserves the right to refuse participation to any applicant or user at any time in its sole discretion.

Account Password and Security. When this Agreement has been accepted and agreed to by you, the password that you create will soon be activated to enable you to access the password-protected portions of VideoSurf Service.  Passwords may not be shared or used by more than one individual.  It is each individual user’s responsibility to remember and protect such password and not to disclose it to any other person.  Remember to choose a strong password, including numbers, capital letters, special characters, etc., and one that is not typically found in a dictionary.  You shall not access or use the Web Site by means of any automated program, expert system, electronic agent or “bot,” and shall not give any person or entity access to the Web Site.  You may never use someone else’s account, username or password without permission. When creating your account, you must provide accurate and complete information. You are responsible for maintaining the confidentiality of the password and account, and you agree that you are fully responsible for all activities that occur under your password or account. You agree to notify VideoSurf immediately if you discover any unauthorized use of your password or account or any other breach of security.  Occasionally, VideoSurf may log in under your username and password in order to provide helpdesk services, answer payment questions or for other technical or administration reasons, and you agree that such access is acceptable to you.

Confidentiality. Except as expressly provided in this Agreement, the parties agrees to hold any designated confidential information ("Confidential Information") disclosed pursuant to this Agreement in confidence, and not to disclose Confidential Information to any person, firm or enterprise, or use any Confidential Information for its own benefit or the benefit of any other party, unless authorized by owning party in writing, and to limit access and disclosure of such Confidential Information to its respective personnel on a "need to know" basis only.  Confidential Information does not include information that is (a) previously known to the receiving party, free from any obligation to keep it confidential, (b) publicly disclosed by disclosing party either prior to or subsequent to the receipt by receiving party of such information, (c) independently developed by receiving party without any access to such Confidential Information, or (d) rightfully obtained from a third-party lawfully in possession of Confidential Information who is not bound by confidentiality obligations to the disclosing party. A receiving party may disclose Confidential Information if such receiving party is required to do so under applicable law, rule or order; provided that the receiving party, where reasonably practicable and to the extent legally permissible, provides the disclosing with prior written notice of the required disclosure. The parties acknowledge that as between the receiving party and the disclosing party, all of the disclosing party’s Confidential Information, including any derivative works thereof, is, and shall remain, proprietary to the disclosing party.

Links.  Although VideoSurf controls a few hyperlinks in the Web Site, most links within this Web Site may lead to third-party sites.  The presence of a link does not imply an endorsement of the linked site, its operator, or its contents, or that VideoSurf is in any way affiliated with the linked site. The Web Site does not incorporate any materials appearing in such linked sites by reference.  VideoSurf reserves the right to terminate a link to a third party web site at any time.  The third party sites are not controlled by VideoSurf, and may have different terms of use and privacy policies, which VideoSurf encourages you to review.  

Indemnity.  You will defend, indemnify and hold VideoSurf, and its officers, directors, employees, agents, subsidiaries, affiliates, licensors, and joint ventures, harmless from any loss, liability, claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement, or your violation of any law or the rights of a third party, including but not limited to infringement of intellectual property rights or that you actions resulted in damage to a third party. 

Force Majeure.  Neither party shall be liable for, nor shall either party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement (other than its payment obligations) as a result of a cause beyond its control, including any act of God or a public enemy or terrorist, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including the Internet or other networked environment), power or other utility, computer virus, labor problem, unavailability of supplies, extraordinary market conditions or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented by the non-performing party with reasonable care. 

Release; California Civil Code Waiver.  If you have a dispute with one or more users, you release VideoSurf (and its officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.  If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

Arbitration.  In connection with the following agreement to arbitrate, you acknowledge that: (i) arbitration is final and binding on the parties; (ii) the parties are waiving their right to seek remedies in court, including the right to jury trial; (iii) pre-arbitration discovery is generally more limited than and different from court proceedings; and (iv) the arbitrators’ award is not required to include factual findings or legal reasoning, and any party’s right to appeal or to seek modification of rulings by the arbitrators is strictly limited.  Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by arbitration administered by the American Arbitration Association in accordance with its International Arbitration Rules (the “rules”).  The language to be used in the arbitral proceedings shall be English.  Upon the claiming party’s service and filing of a notice of arbitration, an arbitrator shall be selected by mutual agreement of the parties to hear the dispute in accordance with the Rules.  If the parties are unable to agree upon an arbitrator, then either party may request that American Arbitration Agreement (“AAA”) select an arbitrator and such arbitrator shall hear the Dispute in accordance with the Rules.  All arbitrators shall be lawyers knowledgeable about information technology transactions.  The seat, or legal place, of arbitration shall be in San Mateo County, California.  Unless the award provides otherwise, the fees and expenses of the AAA and the fees of the arbitrator, will be shared equally by the parties.  Each of the parties shall bear its own other fees, costs and expenses associated with  the arbitration and its own legal expenses, attorneys' fees and costs of all experts and witnesses.  Any award rendered pursuant to such arbitration shall be final, conclusive and binding upon the parties, and judgment thereon may be entered and enforced in any court of competent jurisdiction.  All discussions and correspondence among the representatives for purposes of their negotiations to settle a dispute shall be treated as confidential information developed for purposes of settlement, exempt from discovery and production, which shall not be admissible in any subsequent proceedings between the parties.  Documents identified in or provided with such communications, which are not prepared for purposes of the negotiations, are not so exempted and may, if otherwise admissible, be admitted in evidence in such subsequent proceeding.  No claims to be resolved under this Section may be made more than two (2) years after the date by which the fault or failure was discovered; failure to make such a claim within the two (2) year period shall forever bar the claim. Notwithstanding the foregoing, (1) submission of any such claim, dispute, controversy or other matter in question to AAA shall not be required if the parties agree upon another arbitration forum, (2) the foregoing shall not preclude either party from seeking or obtaining preliminary or interim injunctive relief or pursuing all available administrative, judicial or other remedies for potential violations of the confidentiality provisions set forth above, or the infringement of a registered patent, trademark, service mark or copyright, (3) the parties shall not submit claims for punitive damages, and do hereby waive any right to the same, and (4) the arbitrators shall not be authorized to award punitive damages.

Waiver of Jury Trial. Each party hereto hereby knowingly, voluntarily and intentionally waives, to the fullest extent permitted by law, any right it may have to a trial by jury in any action or proceeding arising out of or relating to this Agreement. Each party acknowledges that the mutual waivers contained in this section are a material inducement for the parties to enter into this Agreement.

Use of Your Name and Logo.  You agree that VideoSurf may use your name, logo, and the title(s) and logo(s) of your submitted video(s) in presentations, marketing and promotional materials, customer lists, financial reports and Web Site listings of customers.

Web Site Controlled from United States.  This Web Site is controlled from offices within the United States. VideoSurf makes no representation that content or materials in this Web Site are appropriate or available for use in other jurisdictions. Access to this Web Site content or materials from jurisdictions where such access is illegal is strictly prohibited. If you choose to access this Web Site from other jurisdictions, you do so at your own risk. You are always responsible for your compliance with applicable laws. THE LAWS OF THE STATE OF CALIFORNIA WILL GOVERN THE CONTENT AND MATERIALS CONTAINED IN THIS SITE, WITHOUT GIVING EFFECT TO ANY PRINCIPLES OF CONFLICTS OF LAWS.  Neither the United Nations Convention on Contractors for the International Sale of Goods nor the Uniform Computer Information Transactions Act shall apply to this Agreement.

Not Authorized to Do Business In Every Jurisdiction.  VideoSurf is not authorized to do business in every jurisdiction.  Information published on this Web Site may contain references or cross-references to goods or services that are not available in your state or country.

Entire Agreement; Severability.  You acknowledge that you have read and understood this Agreement and that you agree to be bound by its terms and conditions.  You further agree that this Agreement, together with the Privacy Policy, the Terms of Use, and other attachments, which are hereby incorporated into this Agreement by reference, constitute the complete and exclusive statement of the Agreement between you and VideoSurf and supersede all other proposals or prior agreements oral or written, and any other communications relating to the subject matter of this Agreement.  If any provision of this Agreement is found unenforceable, it shall not affect the validity of this Agreement, which shall remain valid and enforceable according to its terms.

Miscellaneous.  No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. You may not assign, voluntarily, by operation of law, or otherwise, any rights or delegate any duties under this Agreement without VideoSurf’s prior written consent, and any attempt to do so without that consent will be void. VideoSurf may assign this Agreement to a successor in interest in connection with a change of control, a sale of substantially all of its assets, or a merger, acquisition, public offering or other reorganization transaction. The section headings used herein are for convenience only and shall not be given any legal import.  VideoSurf is an independent contractor of yours and is and will not be your agent for any purpose.  All notices relating to this Agreement shall be in writing and delivered personally, by overnight delivery service or first class prepaid mail with return receipt requested, or via e-mail with written confirmation  via one of the other methods listed above to you at the address set forth “My Account,” and to VideoSurf at the Contact Us addresses given below.  The obligations set forth in above (including those addressing payment of fees, invoicing, disclaimers and limitations of liability) shall survive expiration or termination of this Agreement.  The headings in this Agreement are intended for convenience of reference only and shall not affect the meaning or construction of any provision hereof.  Unless the context clearly requires otherwise, (A) references to the plural include the singular and vice versa; (B) references to agreements (including this Agreement) and other contractual instruments include subsequent amendments, assignments, and other modifications thereto, but only to the extent such amendments, assignments or other modifications are permitted thereunder; (C) references to statutes and related regulations include any amendments of same and any successor statutes and regulations; and (D) “Including” and similar terms mean “including without limitation” (and similarly for similar terms).

Contact Us

For further information, or inquiries about this Agreement, please contact:

VideoSurf Inc.

400 S. El Camino Real

Suite 500

San Mateo, CA 94402

650-293-2237

biz@videosurf.com

                                                                                                            11/21/2009

The “Arbitration” section of this Agreement contains a pre-dispute arbitration clause.  This Agreement has been duly executed by your authorized representative and constitutes a legal, valid and binding obligation, enforceable against it in accordance with the terms hereof.