Pixovi Member Agreement

This is an agreement between Pixovi, LLC ("Pixovi") and You. What we will refer to after this as the "Agreement" includes this document headed "Pixovi Member Agreement" and also any policies, guidelines and amendments that may be incorporated into this Pixovi Member Agreement or presented to You from time to time. This Agreement describes the terms and conditions on which Pixovi offers You participation in Pixovi's video distribution and related services (the "Pixovi Membership Program" as further described below). "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 Pixovi Membership Program. By registering, clicking "I Agree" or otherwise participating in the Pixovi Membership Program, You represent to Pixovi 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 Pixovi 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 Pixovi Membership Program.
With this in mind, You agree to and acknowledge the following:
1. The Pixovi Movie Network
Pixovi develops and maintains a network of video content creators. Pixovi also provides related proprietary and non-proprietary technologies that facilitate the distribution of video content from participating content creators, that display advertisements on the Pixovi website, and that provide links to advertising content from participating advertising partners. This network and technology are referred to after this as the "Internal Pixovi Movie Network." In addition, Pixovi has and makes arrangements with third-party partners to package content from its Network Members for use on one or more third-party distribution channels (each an “External Pixovi Movie Network”). The Internal Pixovi Movie Network and the External Pixovi Movie Network are referred to after this as the “Pixovi Movie Network.” Pixovi makes, or may make, the Pixovi Movie Network available to the public via the Pixovi website, currently located at "www.Pixovi.com" (the "Pixovi Site") and/or via the website's software applications, plug-ins, blogs, media search engines, toolbars, games, components or downloadable code, and other viral online media such as peer-to-peer networks, file sharing, instant messaging and email of Pixovi.
2. The Pixovi Membership Program
The Pixovi Movie Network, the Pixovi Site and related products and services are together referred to after this as the "Pixovi Products". The Pixovi Membership Program permits You to participate in, use and/or obtain access to the Pixovi Products in three ways: (i) a Free Account; (ii) a Private Screenings Account; (iii) a Producer Account; (iv) an Executive Producer Account; or (v) a Distributor Account.
The Free Account allows You to do the following: Participation as a content creator, by creating and submitting video content for distribution in the Pixovi Movie Network. After this, we refer to anyone who participates in this way as a "Content Producer"; Participation as a member of Pixovi, by submitting reviews, communicating with other Pixovi Membership Program members and sharing or submitting other information (we refer to anyone who participates in this way as a "Network Member"); Access to online management services relating to Your websites, video content and advertising campaigns (we refer to such use as "Management Services"); Access to certain Pixovi applications, software and related services, such as access to Pixovi's API (collectively with other applications that are provided at a particular membership level, the "Applications"); Access to trial features, products and services ("Trial Features").
The Private Screenings Account includes all of the Free Account features, plus the following: Ability to host private sessions with invited guests to view your film, trailer, dailies or engage in online conferencing with other producers and studio execs. Participation in live webcam chat sessions with guest speakers; Content viewing without banner ads; Priority uploading; additional Content Management features; mobile content conversion; access additional information about viewers of Your Content; and full profile management features.
The Producer Account includes all of the features available in the Private Screenings Account, plus the following: access to exclusive Pixovi Content; and access to live webcam chat rooms with film industry experts who serve as members of the Pixovi Advisory Board.
The Executive Producer Account includes all of the features available in the Producer Account, plus the following: Customize and execute advertising campaigns. Advertising opportunities include banner ads on your channel, pre/middle/post roll ads. Ad campaign revenues are designed with an 80/20 split. Set-Top-Box application access and delivery.
The Distributor Account includes all of the features available in the Executive Producer Account, plus the following: Discussion with Pixovi Executive's required for this account level. In order to initiate email distributor@pixovi.com
Anyone who provides content to Pixovi is a “Content Producer” and any participation in the Pixovi Membership Program and any use of or access to the Pixovi Products as "Participation" or to "Participate." (Participation includes but is not limited to the functionality available to Free, Private Screenings, Producer, Executive Producer and Distributor Participants. Your use of or access to certain features of the Pixovi Membership 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.
3. Registration
To Participate, You must register online with Pixovi at the Pixovi Site and create a unique, password-protected account ("Account") and choose the level of membership Participation - Free, Private Screenings, Producer, Executive Producer or Distributor. 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 Pixovi will have no responsibility or liability, directly or indirectly, for failure to deliver notices or payments that result from inaccurate Account information. Within your account management dashboard, You can elect whether Your content will be used in the Internal Pixovi Movie Network, the External Pixovi Movie Network, or both. If You have previously authorized Pixovi to use Your content, Pixovi has ninety (90) days after and change that disallows such use before the change will take effect.
4. Policies
Your Participation is subject to all applicable Pixovi specification guidelines, requirements and policies which Pixovi may provide from time to time. These include but are not limited to the Copyright Policy (http://Pixovi.com/info/copyright/), the Privacy Policy (http://www.Pixovi.com/info/privacy-policy/) and any specification guidelines (together, the "Policies"). You agree to comply with the Policies to enable, as applicable, proper delivery, display, tracking and reporting of actions related to the Pixovi Membership Program.
5. Modifications
Pixovi, 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 Pixovi Products or the Pixovi Membership Program (or any parts thereof). Modifications to this Agreement and Policies will be posted on the Pixovi Site or made in compliance with any notice requirements set forth in this Agreement. Modifications to the Pixovi Products or the Pixovi Membership Program will be effective upon posting to the Pixovi Site. You agree that Pixovi shall not be liable to You or to any third party for any modification, suspension or discontinuance of this Agreement, the Policies, the Pixovi Products or the Pixovi Membership Program. By continuing to Participate after Pixovi 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.
6. Participation
To remain eligible for Participation, You must at all times comply with the terms and conditions of this Agreement and all Policies. Pixovi reserves the right to refuse Participation to any applicant or participant at any time in its sole discretion.
If You register to Participate, You may communicate with Pixovi and other Account holders, post or publish comments or rating features regarding Video Content and Ads, Pixovi Products or the Pixovi Membership Program in, as may be made available at Pixovi's complete discretion, a discussion group, webcam 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 Pixovi or through the Pixovi Membership Program, whether created by or for You, including but not limited to websites and content proximately reachable from such Member Comments. Pixovi disclaims all liability relating to Your Member Comments. As more fully set forth in Section 17 ("Representations and Warranties"), You may not submit any Member Comments that contain any sexually suggestive, pornographic, infringing, hate-related, violent or illegal content.
You are solely responsible for all video content You transmit or submit to Pixovi, whether created by or for You, including but not limited to graphics, music, sound, images, files, photos, animation, artwork, text, data, information, messages, hypertext links, scripts or other material (collectively, "Video Content"). Pixovi disclaims all liability relating to Your Video Content. As more fully set forth in Section 17 ("Representations and Warranties"), You may not submit Video Content that contains any pornographic, infringing, hate-related, violent or illegal content.
You agree and accept that Pixovi does not guarantee that Your Video Content will be distributed on any part of the Pixovi Movie Network. Pixovi may, in its sole discretion, and without liability:
• reject, suspend access to or remove any of Your Video Content from the Pixovi Movie Network at any time that Pixovi deems it, in its sole discretion, unsuitable for the Pixovi Movie Network;
• modify any metadata You submit with Your Video Content, including without limitation meta tags, age rating, descriptive language, search terms, category and keyword modifiers;
• modify and/or correct any statistical data created through the use of "robots", "spiders" or "offline readers" to generate artificial views of Video Content.
In connection with Pixovi's marketing, distribution and provision of the Pixovi Membership Program as contemplated herein, You permit Pixovi, as further described in Section 10, to:
• host, index and cache Your Video Content;
• tag Your Video Content with information that will be used by Pixovi to identity it as Your Video Content and assist Pixovi in properly tracking and calculating any revenue amounts that You may earn;
• associate Pixovi's ad insertion software ("Ad Insertion Software") with Your Video Content to enable Pixovi, if applicable and in Pixovi's discretion, to deliver Ads with Your Video Content ("Ads" in this Agreement refers to materials used by Pixovi's advertisers, and links to their associated websites);
• engage in such further actions regarding Your Video Content as may be necessary or appropriate in order to effect the purposes of the Pixovi Membership Program.
During the term of this Agreement You may request that Pixovi remove any or all of Your Video Content from the Pixovi Site. Upon receipt of such request, Pixovi will remove any Ads associated with such Video Content and Your right to receive compensation, if any, for the removed Video Content will automatically terminate. In accordance with Section 8 ("Revenue and Payment Terms") below, Pixovi will pay You all undisputed amounts for the removed Video Content, if any, due to You within ninety (90) days from the last day of the calendar quarter in which such request to remove occurs. Pixovi will use commercially reasonable efforts to remove your Video Content from the Pixovi Site reasonably promptly upon receipt of Your request. However, You acknowledge and agree that Pixovi shall have no obligation to attempt to remove from distribution any of Your Video Content that is otherwise publicly available through the Internet or other publicly accessible medium, or to remove from distribution any of Your Video Content for a period of six months following your receipt of funds from Pixovi pursuant to Pixovi's "Movie's of the Month" award program, other than for reasons pertaining to substantiated allegation of intellectual property infringement.
In the event that Pixovi fails to promptly remove such requested Video Content from the Pixovi Site after Your request for removal, Pixovi 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, the Creative Commons BY-NC-ND License (defined below) that You have granted in Section 10(g) ("Content Producers: Your Irrevocable Non-Commercial Distribution License") herein shall remain in effect for this purpose only.
You agree and accept that Pixovi, upon request of the applicable Content Producers or in its sole discretion, may add or remove from the Pixovi Site any or all Video Content at any time. In conjunction with such removal of Video Content, Pixovi will remove any Ads associated with such Video Content that has been distributed in the Pixovi Movie Network. Pixovi will pay You all undisputed amounts, if any, due to You within ninety (90) days from the last day of the calendar quarter in which such request to remove occurs.
You agree that You will not:
• use or launch any automated system, including without limitation, "robots", "spiders" or "offline readers" to generate artificial views of Video Content, or to otherwise access the Pixovi Site in a manner that sends more request messages to the Pixovi servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser;
• modify any specifications, technology or application codes, including without limitation Pixovi's Ad Insertion Software, provided to You by Pixovi or as embedded in the Video Content in any way, unless expressly authorized in writing by Pixovi;
• intersperse any content between Video Content and its related Ad or between an Ad and the Ad page accessed by an end user after clicking on any part of an Ad (the "Advertiser Page"), or otherwise provide anything other than a direct link from Video Content to an Ad or from an Ad to an Advertiser Page;
• disrupt, intercept or redirect an end user away from any Ad links or Advertiser Page or provide a version of the Advertiser Page that is different from the page an end user would access by going directly to the Advertiser Page; or
• frame, minimize, remove or otherwise inhibit the full and complete display of any Advertiser Page.
Your access to and use of certain Applications and accompanying documentation, including but not limited to Pixovi's API or any software made available to You to assist You in uploading Your Video Content, may be subject to the terms of separate license agreements between You and Pixovi. You will be required to read and indicate Your agreement to such separate terms prior to installing or using such Applications.
Some Trial Features may be made available on an as-is basis only, which will be marked as such. Your use of the Trial Features is at Your own risk. All information relating to the Trial Features will be treated as "confidential" in accordance with Section 16 ("Confidential Information").
7. Participation at Your Own Risk
Your Participation is at Your own risk. Although the Pixovi Membership Program enables users to connect and share Video Content and Member Comments with one another and with end users or viewers, Pixovi has no responsibility to control or monitor any information or exchanges between or among users. Pixovi does not control the Video Content, Ads and Member Comments made available through the Pixovi Products. Some people may find Video Content, Ads and Member Comments objectionable, inappropriate or offensive. Pixovi does not control or guarantee, nor is Pixovi responsible for, the truth, accuracy, ownership, completeness, integrity, safety, timeliness, quality, appropriateness, legality or applicability of any Video Content, Ads and Member Comments. Pixovi assumes no responsibility for monitoring any Video Content, Ads or Member Comments or conduct during Participation. If Pixovi chooses, at any time in its sole discretion, to monitor (in whole or in part) Video Content, Ads, Member Comments or conduct during Participation, Pixovi nonetheless assumes no responsibility for Video Content, Ads and Member Comments, no obligation to modify or remove any Video Content, Ads or Member Comments and no responsibility for conduct during Participation. You agree that Pixovi has no responsibility or liability for the deletion or failure to store, maintain or transmit any Video Content, Ads or Member Comments.
8. Revenue and Payment Terms
(a) Subscription Payments (payments by You). Your selection of a Private Screenings, Producer, Executive Producer or Distributor account requires that You pay a monthly subscription fee (the “Subscription Fee”) in advance that Pixovi can change with thirty (30) days prior notice. The current Subscription Fees are listed on the Pixovi Site. Your credit card or Paypal account will be charged monthly for Your Subscription Fee automatically each month. You may also cancel Your Premium Membership without penalty. If You cancel during any monthly period, You will not be refunded any amount of the Subscription Fee.
(b) Revenue Sources (payments to You). You may be able to generate revenue through Participation as a Content Producer, through valid, end-user activity relating to Video Content and PPV/VOD Sales of Your Video Content via Pay-Per-View/Video-On-Demand through the Pixovi website, Pixovi Mobile and Pixovi Set-Top-Box applications. Such activity could include for example, without limitation, PPV/VOD rentals of your content, or inclusion of Video Content as part of a segment for broadcast on other affiliate channels in the Pixovi Movie Network or PPV/VOD Sales to end-users of mobile or HD versions of Your Video Content (“PPV/VOD Sales”). By uploading Your Video Content onto the Pixovi Site, You grant Pixovi the right to use take PPV/VOD Actions related to Your Video Content, Pixovi will sell and collect for advertisements when Your Video Content is viewed.
Subject to Your compliance with the terms and conditions of this Agreement, Pixovi mayl pay You a Revenue Share, or, in the case of Video Content from multiple Content Producers, a pro-rata share of the applicable Revenue Share of the gross revenue paid to Pixovi from the applicable advertisers, third party service providers and Pixovi Movie Network affiliates, less any third party affiliate acquisition fees, as a result of valid PPV/VOD Actions generated in connection with Your Video Content distributed in the Internal Pixovi Movie Network. Where the Revenue Share is related to gross revenue for advertisements on the Internal Pixovi Movie Network, the Revenue Share shall be 50% and where the Revenue Share is related to gross revenue for advertisements on the External Pixovi Movie Network, the Revenue Share shall be 10%.
If you opt-in for PPV/VOD Sales, You will set the price at whatever value You want to sell Your Video Content for (above Pixovi’s fee that is known as the “Pixovi Distribution Fee”) and Pixovi will pay you the difference between the sales price and the Pixovi Distribution Fee, subject to the other limitations set forth herein relating to Revenue Share and Payment Terms. The license You will be granting to the end-user will be a personal, non-commercial right to view the Video Content on their mobile device, personal computer or set-top-box application, subject to Pixovi’s then current Terms of Sale.
(c) Payment Terms. Amounts due to You, if any, will be made in U.S. Dollars. Payments will be available for withdrawal or transfer thirty (30) days after the end of the calendar quarter in which they are recognized by Pixovi. For example, revenue generated as a result of PPV/VOD Actions on June 30 and July 1 will be available for withdrawal on July 30 and October 30, respectively. Pixovi will not be liable for damages resulting from any failure to post payments to Your Account within such thirty (30) day period. Notwithstanding the foregoing, Pixovi shall make no payments until the total due to You is at least twenty-five dollars ($25). You will not be entitled to receive interest on any Account payments. Except as contemplated by subsection (c) ("Exceptions") below, payments will remain in Your Account until: (x) You transfer such amounts to a PayPal Account or other payment system acceptable to Pixovi; (y) You direct Pixovi in writing to distribute such payments to You via check, wire transfer or electronic transfer to a designated bank or PayPal Account or other payment system acceptable to Pixovi, or to issue you with a credit against your order of advertising or other services from Pixovi, or (z) Pixovi exercises its options under Section 14 ("Term and Termination") below. If You dispute Pixovi's payments made to You under this Agreement, You must notify Pixovi in writing within thirty (30) days of Pixovi depositing such payment to Your Account. Failure to notify Pixovi in this manner will result in Your waiver of any claim relating to such dispute. Pixovi will use reasonable efforts to resolve any such dispute in good faith, but Pixovi's resolution will be final. You are responsible for any and all applicable taxes or charges imposed by any government entity in connection with Your Participation. Pixovi may change its pricing and/or payment structure at any time, upon thirty (30) days' prior notice of any such change (unless Pixovi is required by law to provide more than thirty (30) days notice). All modified payment terms shall be effective thirty (30) days after notice has been provided to You by Pixovi (or such other time period specified in such notice). If any such modified payment terms are not acceptable to You, Your only recourse is to cease Participation. By continuing to Participate following notice of any modified payment terms as set forth herein, You accept and agree to be bound by such modified payment terms.
(d) Exceptions. Pixovi will have no obligation to pay any amounts, and is permitted to deduct or withhold any amounts from or posted to Your Account, determined or reasonably suspected by Pixovi in its sole discretion to have resulted from: (i) Action Fraud (as defined in Section 11 ("Action Fraud") below), including without limitation through any clicks originating from Your IP addresses or computers under Your control, solicited by payment of money, false representation or request for end users Actions co-mingled with a significant number of invalid PPV/VOD Actions; (ii) PPV/VOD Actions originating on Video Content that breaches this Agreement, including but not limited to the restrictions set forth in Section 12 ("Adult Content") and Section 13 ("Copyright Infringement"); or (iii) fraudulent, misleading or false activities. Pixovi reserves the right to withhold or deduct payment, if applicable, or suspend or otherwise disable Your Account, pending Pixovi's reasonable investigation of any of the foregoing or any breach of this Agreement by You.
9. Privacy
Participation is governed by the Pixovi Privacy Policy located at http://www.Pixovi.com/info/privacy-policy/, which is incorporated into this Agreement by reference. Furthermore, by Participating, You understand that when You view or interact with Pixovi Products and features of the Pixovi Membership Program (for example, by clicking on an Ad), Pixovi may collect (and You may provide to Pixovi) 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 Pixovi 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. Pixovi uses Access Information for the purpose of monitoring delivery and distribution of the Video Content and Ads, improving Ad targeting, delivery and reporting, improving the Pixovi Products and the Pixovi Membership Program and measuring their effectiveness with users. Access Information may be shared with Pixovi's third party service providers, affiliates, business partners, sponsors, advertisers, employees, customers and distribution partners.
10. Proprietary Rights & Licenses
(a) Pixovi's Ownership Rights. Pixovi and its licensors own all right, title and interest, including without limitation all worldwide intellectual property rights in the Pixovi Products and the Pixovi Membership Program, and all such rights to all derivative works or enhancements of, in and to, or relating to, the Pixovi Products and the Pixovi Membership Program. By entering into this Agreement or by Your Participation, You will not acquire any intellectual property or similar rights in the Pixovi Products, the Pixovi Membership 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 Pixovi Products, the Pixovi Membership Program or related products and services; or (ii) use Pixovi's name, logo, trademark, trade names or service marks except as expressly permitted in this Agreement without Pixovi'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 Video Content that is submitted, posted or displayed by You on or through the Pixovi Products and Pixovi Membership Program. Pixovi shall not acquire any right, title or interest in or to such Video Content, except as provided herein. Any rights not granted by You herein are deemed retained by You. As more fully described in Section 14 ("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 Video Content You provide or with respect to particular works You provide. If You choose to revoke any of Your revocable licenses, Pixovi will use commercially reasonable efforts to remove Your Video Content from the Pixovi Site reasonably promptly upon receipt of Your notice of revocation. You acknowledge that You are aware that Pixovi has limited practical ability to control or monitor possible infringement of Your intellectual property rights by other parties and that Pixovi assumes no responsibility for controlling or monitoring such intellectual property rights. In addition, Pixovi is not responsible for enforcing Your intellectual property or for suing or taking other legal action against infringers who fail to cease using Your Video Content upon revocation. You or a third party licensor, as appropriate, are responsible for protecting Your intellectual property rights. Pixovi 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 Pixovi has an obligation to do so in any other instance and this does not mean that Pixovi has an obligation to effectively protect or enforce Your intellectual property rights. In the event that Pixovi's Theatrical Distribution division enters into an Acquisition and/or Distribution Agreement with you, a separate agreement with separate terms and conditions will be provided.
(c) Pixovi'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 Pixovi Movie Network (the "Pixovi Marks") solely for purposes of identifying Pixovi and solely in connection with Your permitted activities under this Agreement. You agree that the Pixovi Marks and all associated goodwill are and will remain the sole property of Pixovi, that any goodwill generated as a result of Your licensed use of Pixovi Marks belongs exclusively to Pixovi and inures solely to the benefit of Pixovi, and that Your use of Pixovi Marks is subject to Pixovi's control of the quality of any products or services with respect to which You may be authorized to use Pixovi Marks.
(d) Your Member Comments License to Pixovi. 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) Pixovi a worldwide, royalty-free, non-exclusive, sub licensable, transferable, 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.
(e) Your Revocable Limited License to Pixovi. In order to allow Pixovi to distribute Your Video Content in the Pixovi Movie Network, You hereby grant (or warrant that the owner of such rights has expressly granted) to Pixovi a worldwide, revocable, non-exclusive, sublicensable and transferable, limited right and license to use, reproduce, modify and adapt, excerpt, publish, transmit, publicly perform, display, reference, store, host, index and cache, in any form, medium or technology now known or later developed, any Video Content, Member Comments or materials You submit to Pixovi, in whole or in part, whether created by or for You, by any method, in any and all media and through any media distribution channels, whether currently existing or hereafter developed. You understand that Your revocable limited license to Pixovi includes Your grant to Pixovi of the right to create, display and distribute (as set forth more fully in the previous sentence) a derivative work based on Your Video Content, which derivative work is comprised either solely of Your Video Content as adapted to include Pixovi's computer software, including Pixovi's Ad Insertion Software, whose functions are to enable Ads to be associated with Your Video Content, to identity Your submission as Your Video Content, to assist Pixovi in properly tracking and calculating any revenue amounts that You may earn, and to effect related functions or to include Your Video Content as part of a compilation project for broadcast on the Pixovi Movie Network through an affiliate. (After this we refer to the aforementioned derivative work as "Your Pixovi Modified Video Content"). Pixovi's rights, with respect to Your Pixovi Modified Video Content, are limited to its rights set forth in this Agreement, and Pixovi expressly waives and disclaims, with respect to You, any other rights it might otherwise hold to Your Pixovi Modified Video Content under copyright law. As more fully described in Section 14 ("Term and Termination"), this license will terminate: (i) with respect to any Video Content that You have requested be removed in accordance with Section 6(a) ("Participation (Content Producers)"); and (ii) upon termination of the Agreement in accordance with Section 14 ("Term and Termination").
(f) Your Revocable Commercial Distribution License to Pixovi. In order to allow Pixovi to distribute Your Pixovi Modified Video Content in the Pixovi Movie Network, You hereby grant (or warrant that the owner of such rights has expressly granted) to Pixovi a limited, revocable right to use, reproduce, publicly perform, distribute, adapt, and display Your Pixovi Modified Video Content for monetary compensation or commercial purposes in the Pixovi Movie Network as contemplated by this Agreement and to engage in such further actions relating to and in connection with Your Video Content as may be necessary or appropriate in order to effect the purposes of the Pixovi Movie Network.
(g) Your Irrevocable Non-Commercial Distribution License. You hereby grant (or warrant that the owner of such rights has expressly granted) to any persons or entities who want to use Your Pixovi Modified Video Content in a manner not intended for commercial advantage or private monetary compensation, a right to use, reproduce, publicly perform, distribute and display Your Pixovi Modified Video 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 Pixovi holds any rights to Your Pixovi Modified Video Content pursuant to Section 10(d) of this Agreement, Pixovi also grants the rights stated in this paragraph to such persons or entities pursuant to the Creative Commons BY-NC-ND License.
(h) Your Information. You authorize Pixovi to use, as applicable to Your Participation, Your Video Content, name, likeness, 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 Pixovi Site, advertising and marketing materials, press releases, customer lists and financial reports, in connection with Pixovi's marketing, publicity, distribution and provision of the Pixovi Products and Pixovi Membership Program. You also grant Pixovi 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 Pixovi Products and the Pixovi Membership Program and for soliciting other distributors, publishers, creators and advertisers to use the Pixovi Products and Participate. You acknowledge and agree: (i) that You understand that You may provide, and Pixovi may collect, Your Information during Your Participation; and (ii) that Your Information may be shared with Pixovi's affiliates, business partners, sponsors, advertisers, employees, customers and distribution partners.
(i) No Endorsement; No Publicity. Pixovi does not endorse, verify, evaluate or guarantee any information or Video Content or Ads provided by users, including You, and nothing shall be considered as an endorsement, verification or guarantee of any information or Video 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 Pixovi of You or Your Video Content or Ads; or (ii) relating to this Agreement, without the prior review and written approval of Pixovi. Notwithstanding the foregoing, You may accurately disclose and describe Your Participation and Your Video Content (for example, describing and promoting Your Video 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 Pixovi in connection with the Pixovi Products and Pixovi Membership Program in any way, unless expressly authorized in writing by Pixovi. Pixovi may modify the format and look and feel of the Pixovi Products and Pixovi Membership Program from time to time. Excluding Your Video Content or Ads, You agree to assign and hereby do assign to Pixovi and its licensors (as applicable) all right, title and interest in and to any part of the Pixovi Products and Pixovi Membership Program that You may have or acquire during Your Participation. You warrant that all so-called moral rights You may have in the Pixovi Products or Pixovi Membership 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 Pixovi Products or Pixovi Membership Program. Any rights not expressly granted herein are deemed withheld.
11. Action Fraud
You will not, and will not authorize any party to, directly or indirectly, generate automated, fraudulent or otherwise invalid PPV/VOD Actions. If, in Pixovi's reasonable business judgment, PPV/VOD Actions or activity related to Your Account is suspected or determined to be so-called "click fraud" or "transaction 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 initiate a PPV/VOD transaction, or any other fraudulent means, to increase impressions, skew results or imitate a legitimate user of a web browser, for example, by initiating POPV/VOD transaction value and generating revenue (collectively, "Action Fraud"), Pixovi may suspend or otherwise disable Your Account until such time as the matter is resolved to Pixovi's satisfaction.
12. Adult Content
You will not use the Pixovi Site or Pixovi Membership Program for any purpose or in any manner to display, post or make available any explicit, graphic sexual, pornographic or erotic material nor upload, email, post, publish, distribute, transmit, submit or otherwise make available through the Pixovi Site or Pixovi Membership Program any Video Content, Ads or Member Comments, that is of an explicit, graphic sexual, pornographic or erotic nature ("Adult Content"). Examples of content that Pixovi, 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 Pixovi finds Video Content that it determines, in its sole discretion, contains Adult Content, Pixovi may, without notice, remove or block access to such Video Content. Pixovi reserves the right to suspend or cancel at any time and without notice Your Account, or deduct or withhold payments related to any Video Content or Ads, that Pixovi, in its sole discretion, determines to be in violation of this Section. Pixovi will take all appropriate steps with Video Content that Pixovi 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 Pixovi immediately.
13. Copyright Infringement
You will not use the Pixovi Site or Pixovi Membership 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 Pixovi Site or Pixovi Membership 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 Pixovi's policy to respond to notices of any actual or alleged infringement that are reported to Pixovi's "Designated Copyright Agent" and that comply with the DMCA. It is Pixovi'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 Pixovi's Designated Copyright Agent in accordance with Pixovi's Copyright Policy (http://www.Pixovi.com/info/copyright/), incorporated herein, at the address indicated in Pixovi's Copyright Policy.
14. Term and Termination
(a) Termination. Pixovi may immediately terminate this Agreement, or cancel the Pixovi Membership Program, for any reason at any time. You may terminate this Agreement at any time by disabling Your Account or providing notice to Pixovi 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 Content Producer) 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 Pixovi Membership Program system. Upon termination: (i) all licenses granted to You hereunder will immediately terminate; (ii) You will promptly destroy all copies of Pixovi Products in Your possession or control; and (iii) Pixovi will pay all undisputed amounts, if any, due to You within ninety (90) days from the last day of the month in which termination occurs. In no event, however, shall Pixovi make payments for any earned balance less than twenty-five dollars ($25). Upon termination, Pixovi may continue to use any user analytics collected hereunder for solely internal (including archival) purposes, and all related licenses You have granted Pixovi shall remain in effect for this purpose only. In the event that this Agreement or the Pixovi Membership Program expires or is terminated, Pixovi shall not be obligated to return any materials to You.
Content Producers. Upon termination, Pixovi will remove any VOD/PPV functionality and/or Ad links associated with Your Video Content. Although Pixovi will use commercially reasonable efforts to ensure Your Video Content is removed from the Pixovi Site reasonably promptly following termination, Pixovi shall have no obligation to remove any of Your Video Content that is otherwise publicly available through the Internet or other publicly accessible medium. In the event that Pixovi does not promptly remove Your Video Content from the Pixovi Site through inadvertence or other error, Pixovi shall not be liable to You for damages or charges of any kind in an amount greater than the revenues You would have been entitled to under this Agreement but for the termination.
(c) Survival. The rights and obligations contained in Section 10(a) ("Pixovi's Ownership Rights") and 10(b) ("Your Ownership Rights"), Section 10(f) ("Content Producers: Your Irrevocable Non-Commercial Distribution License"), Section 14(b) ("Effect of Termination"), Section 14(c) ("Survival"), Section 16 ("Confidential Information"), Section 19 ("Indemnity"), Section 20 ("No Guarantees; Warranty Disclaimers"), Section 21 ("Limitation of Liability") and Section 22 ("General") of this Agreement will survive termination or expiration of this Agreement for any reason.
15. Notifications
Pixovi 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 Pixovi 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 Pixovi Site). Any notices to Pixovi must be sent either: (i) via first class or air mail or overnight courier to Pixovi, Inc., Pixovi Membership Program, 7925 Stone Creek Drive, Suite 110, Chanhassen, MN 55317; or (ii) via first class or air mail or overnight courier, and are deemed given upon receipt.

Please Continue Reading Pixovi Member Agreement(ii)....

16. Confidential Information
During the term of this Agreement, You may receive confidential information from Pixovi 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 Pixovi. 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 Pixovi: (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 Pixovi 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 Pixovi 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 Pixovi Products and the Pixovi Membership Program; (ii) click-through or Advertising Action rates, conversion rates and other statistics relating to the Pixovi Products and the Pixovi Membership Program; and (iii) Trial Features or any other information designated in writing by Pixovi 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 Pixovi's confidential information; or (z) You rightfully obtain from a third party without disclosure restrictions.
17. Representation & Warranties
(a) Your Authority. You represent and warrant to Pixovi that: (i) You have all requisite power and authority, corporate or otherwise, to enter into this Agreement, to 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 Video Content (if You are a Content Producer), and Your Member Comments (if You are a Network 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; and (vii) You will Participate solely for the purposes intended and expressly permitted.
(b) Your Materials. You represent and warrant that Your Video Content, Your Member Comments or any other information or material You submit or make available to others during Your Participation, and Pixovi'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 Pixovi Products or Participation in the Pixovi Membership 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 Video Content 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 Pixovi Membership Program or disable, damage or erase any portion of the Video 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 Pixovi Products or the Pixovi Membership Program through any means not intentionally made available by Pixovi to You, or attempt to gain unauthorized access to Pixovi's database, technology, computer systems or networks associated with the Pixovi Products or the Pixovi Membership Program; or (ii) engage in any activity that disrupts, diminishes the quality of, interferes with the performance of or impairs the functionality of the Pixovi Products and the Pixovi Membership Program.
(d) Cooperation. You agree to cooperate fully with Pixovi to investigate any suspected or actual activity that is in breach of this Agreement. You acknowledge that any violation of this Section 17 ("Representations and Warranties") is a material breach of this Agreement and that Pixovi 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. Pixovi reserves the right to investigate, at its own discretion, any activity that Pixovi suspects may violate this Agreement. Pixovi 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 Pixovi, 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 Pixovi; or (ii) suspects that Your actions may be illegal or cause liability.
18. Links
The Pixovi Products and the Pixovi Membership Program may provide, or third parties may provide, links to other websites or resources. Because Pixovi has no control over such sites and resources, You acknowledge and agree that Pixovi 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 Pixovi 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.
19. Indemnity
You will indemnify, defend and hold Pixovi 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 "Pixovi 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 Video Content (if You are a Content Producer), Your Member Comments (if You are a Network Member) or any other information or material You submit during Participation; (iii) Your conduct, including Your use of Pixovi 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 Pixovi Entities. Pixovi shall have the right to withhold any payments due to You, if any, to offset liabilities and expenses covered hereunder. Pixovi shall have the right, in its sole discretion, to select its own legal counsel to defend Pixovi from any Claims (but by doing so shall not excuse Your indemnity obligations) and You shall be solely responsible for the payment of all Pixovi's reasonable attorneys' fees incurred in connection therewith. You shall notify Pixovi immediately if You become aware of any actual or potential claims, suits, actions, allegations or charges that could affect Your or Pixovi'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 Pixovi, 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 Pixovi.
20. No Guarantees; Warranty Disclaimer
(a) No Guarantees. Pixovi makes no guarantees: (i) regarding the availability, operation, maintenance, timing or delivery of the Pixovi Products, the Pixovi Membership 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 Video Content or Ads will be distributed in the Pixovi Movie Network; (iv) regarding the relevancy of any Ads to Video 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 Video Content.
(b) Warranty Disclaimers. Your use of the Pixovi Products and Participation in the Pixovi Membership Program are at Your sole discretion and risk. The Pixovi Products and the Pixovi Membership 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 PIXOVI ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE PIXOVI PRODUCTS AND THE PIXOVI MEMBERSHIP 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 Pixovi Entities disclaim any warranties: (i) regarding the security, accuracy, reliability, timeliness and performance of the Pixovi Products or the Pixovi Membership Program; (ii) regarding the goods, services, advise, information or links provided by any third party services providers, Content Producers, sponsors, syndicators or Network Members; (iii) that the Pixovi Products or the Pixovi Membership Program will meet Your requirements; or (iv) that the Pixovi Products or the Pixovi Membership Program will be error-free or that any errors will be corrected. No advice or information, whether oral or written, obtained by You from Pixovi or from Your Participation, shall create any warranty not expressly stated in this Agreement.
Pixovi 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 Pixovi Products or the Pixovi Membership 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 Pixovi be responsible for any loss or damage, including personal injury or death, resulting from Participation, from any Video Content, Ads or Member Comments posted on or through the Pixovi Products or the Pixovi Membership Program, or from the conduct of any users of the Pixovi Products or Participation in the Pixovi Membership 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.
21. Limitation of Liability
THE PIXOVI 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 PIXOVI PRODUCTS, YOUR PARTICIPATION IN THE PIXOVI MEMBERSHIP PROGRAM OR USE OF ANY MATERIALS AVAILABLE TO YOU FROM OR THROUGH THE PIXOVI MEMBERSHIP PROGRAM (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT PIXOVI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PIXOVI'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 PIXOVI FOR THE PIXOVI PRODUCTS OR PARTICIPATION IN THE PIXOVI MEMBERSHIP PROGRAM.
You acknowledge that Pixovi 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. Pixovi shall have 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 Pixovi's infrastructure or connectivity to the Internet, or failure of any third party distribution partner, (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, Pixovi 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.
22. General
(a) Governing Law; Arbitration. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. 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 be submitted to the American Arbitration Association or its successor ("AAA") and decided by binding arbitration, in accordance with the AAA's rules and procedures in effect on the date of submission to arbitration, by one arbitrator reasonably familiar with the business pertaining to the products and services covered by this Agreement, appointed in accordance with such Rules and Procedures. The arbitrator shall apply Minnesota law to the merits of any dispute or claim. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in Hennepin County, Minnesota, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. 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, and by the arbitrator and any AAA employees, 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 Pixovi, for which there are no adequate remedies at law, and nothing in this Section shall be deemed to prevent or delay Pixovi'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 10(a) ("Pixovi's Ownership Rights"); (ii) Section 13 ("Copyright Infringement"); and (iii) Section 16 ("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 Pixovi. Any attempted assignment in violation of this Section will be null and void and of no force or effect. Pixovi 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 Pixovi'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 Pixovi 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 Pixovi regarding this subject matter, and supersedes any and all prior or contemporaneous agreements or understandings, written and oral, between You and Pixovi 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 Pixovi Membership Program.
(g) Relationship. You and Pixovi are independent contractors, and this Agreement, including but not limited to submission or distribution of any Video 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 Pixovi. 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. Pixovi reserves the right to change, in whole or in part, the names, logos, presentation and display of the Pixovi Member Agreement, the Pixovi Membership Program and the Pixovi Products at any time in its sole discretion.