This Agreement sets forth the terms of agreement between Group Twenty 6, a division of ITEM TECHNOLOGY (hereinafter "G26"), a California business, which owns and operates the G26 website to users who provide information or files to G26 to post on the G26 website. The parties hereto, intending to be legally bound, agree as follows:
1. Services Provided by G26 and Storage Fees. G26 agrees to make information and files created and/or recorded by user (hereinafter "Multimedia") available on the G26 website for browsing and for downloading by students, previous students, or other users ("Users"), and to make any images related to the Multimedia (hereinafter "images") available for viewing and downloading by Users. The proceeds from each sale of user’s Multimedia are not owned or collected by G26. G26 will make the user’s Multimedia available for other users to sample without charge, as controlled by the creators of the Multimedia, at their own option. This service is offered only for Multimedia and images that the user has created themselves, or has played a part in creating.
To provide premium services every month (unlimited searches, video uploads, file uploads, searching outside of a student's own school), the user agrees to pay G26 a monthly fee to maintain this agreement. This fee includes storing and prolonging the availability of the user’s premium Multimedia on the G26 website on a month-to-month basis at the then applicable published fee as of such monthly renewal date. G26 shall undertake to notify user of all prospective changes to fees, by publishing or giving notice of those changes in a notice to the user's email.
2. Grant of Non-Exclusive License. user hereby grants to G26 a royalty-free, non-exclusive license to post the Multimedia on the G26 website, and make entire selections or portions thereof available for viewing by the public, to those who have been suppliedwith a user's "public password". The user also grants to G26 a royalty-free, non-exclusive license to display user’s images for previewing and downloading along with any other Multimedia supplied by the user.
G26, being a division of Item Technology, is an archive of information and recordings with a convenient search and viewing system. Users who visit the site and register are not charged for downloading materials, in accordance with the tariffs and rules set by G26. All Users must register in order to obtain full access to the G26 website. Non-registered users have limited access to the G26 website: they can only view general G26 information pages, and view public profiles if given a public password. G26 will make reasonable efforts to monitor the use of the G26 website to prohibit unqualified and/or unregistered users from downloading Multimedia, to prevent unqualified contact, and to prevent or minimize any interruption of accessibility to users, but G26 shall not be liable to user for any such prohibited usage or conduct, contamination, interruption in accessibility, or any archiving problems.
3. Payments to user. G26 does not currently intend to sell anything on users behalf, and does not intend to pay users for the privilege of distributing their Multimedia to other students (which is all under the Multimedia creator's control).
4. User Representation as to Intellectual Property Rights. The user represents and warrants to G26 as follows:
(a) that user is the true and rightful owner of, or is licensed or otherwise possesses legally enforceable rights to use, the registered and unregistered rights, titles, and interests in and to any United States or foreign trademarks, service marks, trade names, copyrights or other intellectual property rights relating to the Multimedia and Images provided to G26 by user under this Agreement, including but not limited to the right to post on the internet, reproduce, and otherwise use the Multimedia and images;
(b) that user has conducted a thorough investigation as to the Multimedia and images concerning copyright infringement or other property rights of third parties;
(c) that the execution and delivery of this Agreement or the performance by G26 of the obligations hereunder will not violate any intellectual property rights of third parties; and
(d) that no claims with respect to the user’s intellectual property rights or third party intellectual property rights in the Multimedia and images are currently pending, nor to the knowledge of the user, are threatened by any person, nor, to the user’s knowledge, do any grounds for any claims exist.
user acknowledges that these representations and warranties are material to this Agreement, and that G26 is relying on these representations and warranties as consideration for agreeing to make the Multimedia and images available for on-line viewing. G26 reserves the right, at its sole discretion, to investigate the ownership of and rights to any and all Multimedia and images provided hereunder. By reserving these rights, G26 does not in any way assume an obligation to investigate or verify ownership of or rights to any Multimedia and images provided by user, and G26 may rely on user’s representations and warranties provided herein, even if G26 investigates such ownership. In addition to G26’s other rights to termination or otherwise hereunder, if G26 determines, or has reason to believe, that the user does not have the authority to produce the Multimedia and images, G26 will have no obligations to the user to provide any work or services with respect to such Multimedia and images.
User agrees to provide G26, upon request, all necessary documentation of ownership or other legal rights, including without limitation all pertinent trademark, copyright and licensing information. G26 wishes to protect property owners from the unauthorized distribution of the content of their property.
5. user’s Representations as to Content. In selecting to have Multimedia uploaded onto the G26 website, user represents and warrants to G26 that user has fully and accurately investigated and searched for the existence of any content that would be categorized as intellectual property infringement. Notwithstanding user’s representations herein, G26 reserves the right to decline to post any Multimedia content and/or images that it deems to be offensive or explicit, or to discontinue posting of such material without prior notice to user. The user further represents and warrants that the content supplied to G26 is free from contamination, viruses, or metadata that could damage or infect the G26 website users who download Multimedia from G26 website.
6. Limitation of Liability and Indemnification. G26 shall not be liable for any consequential, indirect, incidental, special or punitive damages or losses of any nature (including, without limitation, lost revenues, profits or goodwill or damage to reputation) (collectively, "Consequential Damages") suffered by user or anyone else, under any theory, whether foreseeable or unforeseeable, in connection with G26’s performance hereunder for any reason whatsoever, including without limitation, for any defects or errors in material or workmanship.
The user agrees to fully indemnify, defend, protect, and hold harmless G26 its respective officers, directors, agents, affiliates, distributors, franchisees, and employees (collectively, "Indemnified Parties") against any liabilities, losses, claims, damages of any type or nature (including without limitation any consequential damages), causes of action, lawsuits, administrative proceedings (including interest from the date of such damages), and costs and expenses (including without limitation reasonable attorneys’ fees and disbursements of every kind, nature, and description related to litigation, arbitration or otherwise) (collectively, "Damages") suffered, sustained, incurred or paid by the Indemnified Parties in connection with, resulting from, or arising out of, directly or indirectly (i) any claim, demand, proceeding, or lawsuit by a third party for any reason whatsoever arising from the Multimedia and images provided by the user under this Agreement, including without limitation any alleged negligence of G26 and any alleged violation of patent, copyright, trademark, trade secret, or other proprietary right of any third party, (ii) any breach of any representation or warranty of the user set forth in this Agreement or the Intellectual Property Rights (IPR) form, or in any other form or document in connection herewith, and (iii) any damage, virus or infection originating from user’s Multimedia that contaminates the G26 website.
7. Internet Interruption and Website Contamination. G26 is not responsible to user for any interruption of access to the G26 website for any reason, or for any contamination, virus, or infection that causes damage to user’s content uploaded onto the G26 website. G26 is not responsible for any loss of revenue or goodwill to user due to any such interruption or contamination or due to any other reason, including but not limited to any damage to user’s reputation that may result.
8. Amendment and Termination. G26 reserves the right to change, amend, and supplement this Agreement at any time, at its sole discretion. G26 shall undertake to notify user of all prospective changes to the Agreement, by publishing or giving notice of those changes in an email to the user. In the event that user disagrees with any such changes to the Agreement, user should notify G26 at the email address: info (insert @ symbol) grouptwenty6.org immediately to terminate this Agreement. Notwithstanding anything herein to the contrary, G26 shall have the right, with or without any cause or reason, at any time, to terminate this Agreement or to decline to post, or to discontinue posting, of any or all of the Multimedia and/or images of the user, without prior notice to the user. The user reserves the right to terminate this Agreement at any time by notifying G26 as provided herein.
9. Notice. Whenever notice to user is required by this Agreement, publication on the "News" page, which is also fed onto the user's "Control Panel" page, or an email to the user shall be sufficient. Whenever Notice to G26 is required by this Agreement, the user agrees that Notice will be made in writing via e-mail to G26 at info (insert @ symbol) grouptwenty6.org that is acknowledged by an authorized representative of G26.
10. Arbitration; Jurisdiction. Any dispute, controversy or claim between user and G26 arising out of or related to this Agreement or the breach, termination, or validity thereof shall be resolved by arbitration in Los Angeles County, California in accordance with the then prevailing Commercial Arbitration Rules of the American Arbitration Association ("AAA") including, without limitation, all rules providing for interim measures (injunctive relief) if interim measures are required, and judgment upon the final and binding award rendered by the Arbitrator(s) may be entered and enforced as a common law award by any court having jurisdiction over the parties. user agrees that user will be subject to the exclusive jurisdiction of the State of California, and that any venue or forum outside of the State of California shall be deemed improper and non-convenient for any dispute between G26 and user. All disputes will be heard by a single arbitrator. In any case where AAA or its successors are not in existence, the arbitration shall proceed with statutory arbitration under the appropriate state act, as deemed appropriate by G26. G26 and user hereby consent to such venue and jurisdiction for dispute resolution hereunder. user hereby waives personal service of any and all process upon it, and consents that all such service of process may be made by mail or messenger directed to it at user’s email address.
11. Governing Law. This Agreement, and any controversy or claim arising out of this Agreement, or the breach thereof, shall be governed by and construed according to the domestic laws of the State of California, without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction, including any jurisdiction outside of the United States of America) that would cause the application of the laws of any jurisdiction other than the State of California.