OPEN MEDIA FOUNDATION End User License Agreement

IMPORTANT! PLEASE READ THIS END USER LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE USING THE OPEN MEDIA NETWORK CLIENT SOFTWARE.  THIS AGREEMENT ("AGREEMENT") IS A LEGAL CONTRACT BETWEEN YOU (AN INDIVIDUAL, OR ENTITY HEREAFTER REFERRED TO AS "YOU") AND THE OPEN MEDIA FOUNDATION, A CALIFORNIA NONPROFIT CORPORATION THAT OPERATES THE OPEN MEDIA NETWORK, (COLLECTIVELY "OMN") FOR USE OF THE OMN SOFTWARE AND OMN SERVICE. IF YOU  CLICK ON THE BUTTON INDICATING YOUR ACCEPTANCE/AGREEMENT IN ORDER TO INSTALL THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE AND THE TERMS OF USE FOR THE OPEN MEDIA NETWORK SERVICE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE SOFTWARE OR THE OPEN MEDIA NETWORK SERVICE.   THE TERMS OF USE FOR THE OPEN MEDIA NETWORK SERVICE ARE AT: http://www.omn.org/viewer_terms_of_use.shtml

BY USING THE OPEN MEDIA NETWORK SOFTWARE AND SERVICE: (A) YOU REPRESENT THAT: YOU HAVE THE LEGAL CAPACITY TO ENTER INTO CONTRACTS; (B) YOU AGREE THAT YOU UNDERSTAND THE NATURE OF THE KONTIKI DELIVERY MANAGEMENT SYSTEM AND WILL USE THIS SOFTWARE AND SERVICE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND (C) YOU AGREE THAT YOU ARE BOUND BY AND ARE A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT DOWNLOAD, INSTALL, USE, OR TEST THE SOFTWARE OR SERVICE.

1.0   DEFINITIONS.

1.1 " Service" means the OMN service through which You are provided with Content using the Kontiki Delivery Management System. The Kontiki Delivery Management System is described at: http://www.kontiki.com/products/index.html

1.2 “Software" means the object code of the software made available by OMN  for installation after Your acceptance of this Agreement, and any future patches, fixes, updates and/or upgrades to such software.

1.3 "Content" means the digital content made available to You by and/or from the OMN website and/or service.

2.0   LICENSE GRANT. OMN grants You a non-exclusive, non-sublicensable, non-transferable license to use the Software, Service, and Content solely for your personal, non-commercial use. You may not use the Software, Service, or Content for any other purpose. This license does not entitle You to receive from OMN or its licensors hard-copy documentation, support, telephone assistance, or enhancements or updates to the Software or  Service. You are only receiving a limited license to use the Software as described in this Section 2.0, and OMN reserves all rights not expressly granted to You.  3.0   STORAGE & SHARING OF CONTENT. You understand and agree that as part of the  Service: (a) Content that You request may be delivered to You from the computers of other users of the  Service; (b) such Content will be stored on Your personal computer until deleted by You or the automatic operation of the  Software; and (c) the  Software may access Content stored on Your computer and reproduce all or portions of such Content in order to distribute it to others who request delivery of such Content from the OMN website. The  Software can only deliver the Content to and from Your computer. No other content from Your computer will be accessed or transferred by the  Software.

4.0 PRIVACY. The Kontiki Privacy Principles, which can be viewed at http://www.kontiki.com/client/privacy.html explain how the Kontiki Secure Delivery Plug-In and the Kontiki Delivery Management System use information collected in connection with Your use of the  Service. By using the  Service, You acknowledge and accept the Kontiki Privacy Principles.

5.0  FEEDBACK. You acknowledge that feedback concerning users' experiences with the  Software and  Service is essential to their improvement. You agree that OMN or its licensors may gather information from Your computer system relating to Your use of this  Software and  Service, including frequency of use and types of Content selected. You also agree that OMN may solicit Your feedback concerning Your experience with this  Service via a survey or other means. Such information will only be used in connection with evaluating and improving the  Software and/or Service.

6.0   RESTRICTIONS.

6.1    Software and Service. You may not: (a) modify or create any derivative works of the  Software; (b) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the  Software or the communications protocols for accessing the  Service (except to the extent applicable laws specifically prohibit such restriction); (c) reproduce the  Software; (d) distribute, transmit, publicly display, publicly perform, make available to 3rd parties, publish, encumber, sell, rent, lease, loan, sublicense, or otherwise transfer (temporarily or permanently) the  Software; (e) use the  Service to provide service bureau, ASP or other similar services to third parties; (f) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the  Software; or (g) block, disable or otherwise affect any advertising, advertisement banner window, links to other sites and services, or other features that constitute an integral part of the  Software or  Service.

6.2   Content. Unless the owner of the Content expressly grants You permission as specified at the website of the content owner, You may not: (a) modify or create any derivative works of the Content; (b) edit or modify the links in the Content; (c) reproduce the  Software or any Content; (d) reproduce, distribute, transmit, publicly display, publicly perform or publish the Content for commercial purposes; or (e) remove, alter, conceal or obliterate any copyright or other proprietary notice, or any credit-line or date-line or other mark or source identifier included in the Content.

7.0  NO SUPPORT. You acknowledge that the  Software and  Service may have defects or deficiencies that cannot or will not be corrected by OMN and/or its licensors or other suppliers, and that OMN is under no obligation t to provide You with any error corrections, updates, upgrades, bug fixes and/or enhancements. You shall have sole responsibility for the adequate protection and backup of Your data and/or equipment used with the  Software and  Service.

8.0   TERMINATION. This Agreement and Your right to use the Software and Service will terminate immediately and without notice should You breach this Agreement. In the event of any termination of this Agreement or Your rights hereunder, all provisions of this Agreement except the License Grant (Section 2.0) shall survive such termination and You agree to continue to be bound by those terms.

9.0   PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property rights (collectively the "IP") in: (a) the  Software, Service, and the Kontiki Delivery Management System shall remain in OMN and/or its licensors and other suppliers; and (b) the Content shall remain in the owner of the Content. You expressly acknowledge such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with OMN's or its licensors’ or other suppliers' or Content owners’ ownership of or rights with respect to the IP. The IP is protected by copyright and other intellectual property laws and by international treaties. All trademarks used in connection with the IP are owned by OMN, its affiliates and/or its licensors and other suppliers and the Content owners, and no license to use any such trademarks is provided hereunder. You agree that OMN may use in any manner and without limitation all comments, suggestions, complaints and other feedback You provide relating to the  Service.

10.0   DISCLAIMER OF WARRANTY. THE  SOFTWARE,  SERVICE AND CONTENT ARE PROVIDED WITH ALL FAULTS ON AN "AS IS" BASIS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. THE  SOFTWARE,  SERVICE AND CONTENT ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES THAT THEY ARE FREE OF DEFECTS, VIRUS FREE, ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, MERCHANTABLE, OF SATISFACTORY QUALITY, FIT FOR A PARTICULAR PURPOSE, OR NON-INFRINGING, EXCEPT TO THE EXTENT SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. OMN AND ITS LICENSORS AND OTHER SUPPLIERS DO NOT WARRANT THAT THE FUNCTIONALITY OF THE  SOFTWARE,  SERVICE OR ANY CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ERRORS WILL BE CORRECTED, NOR DO THEY WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE  SOFTWARE,  SERVICE, CONTENT OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OMN OR AN OMN AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY INCAPABLE OF EXCLUSION HEREUNDER. OMN AND ITS LICENSORS AND OTHER SUPPLIERS HAVE NO LIABILITY WITH RESPECT TO YOUR USE OF THE  SOFTWARE AND  SERVICE. YOU BEAR THE ENTIRE RISK AS TO THEIR QUALITY AND PERFORMANCE AND YOU ASSUME THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE  SOFTWARE OR  SERVICE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.

11.0   LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OMN OR ITS SUBSIDIARIES, AFFILIATES, DIRECTORS, EMPLOYEES, DISTRIBUTORS, LICENSORS, SUPPLIERS, OR AGENTS (COLLECTIVELY, THE " OMN GROUP") BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE  SOFTWARE,  SERVICE, OR CONTENT, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, THE OMN GROUP'S ENTIRE COLLECTIVE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE THE REPLACEMENT OF THE  SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU. TO THE EXTENT THAT THE FOREGOING LIMITATION IS NOT APPLICABLE FOR ANY REASON, THE LIABILITY OF THE OMN GROUP, THIRD PARTY CONTENT PROVIDERS AND THEIR RESPECTIVE AGENTS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

12.0   EXPORT CONTROL. You agree to comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority, and not to export, re-export or import the  Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. For example, You may not export or re-export any commodities, software, or technical data received from OMN, or any direct product of such commodities, software or technical data, to any proscribed country, party, or entity listed in the applicable laws, regulations, and rules of the U.S. Government unless properly authorized. As applicable, each party shall obtain and bear all expenses and responsibility relating to any necessary licenses and/or exemptions with respect to its own export or re-export of the  Software from the U.S.

13.0 INJUNCTIVE RELIEF. You acknowledge and agree that, notwithstanding any other provisions of this Agreement, Your breach or threatened breach of this Agreement shall cause OMN irreparable damage for which recovery of money damages would be inadequate and that OMN therefore may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.

14.0 U.S. GOVERNMENT END USERS. The  Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the  Software with only those rights set forth herein.

15.0 MISCELLANEOUS. (a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, which may only be modified by a written amendment signed by an authorized executive of OMN. (b) Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of the State of California, U.S.A., excluding its conflict of law provisions. (c) You expressly agree that jurisdiction for any claim or dispute arising from the use of the  Software or  Service resides in the federal and state courts in Santa Clara County in the State of California, and You consent to the personal jurisdiction thereof. (d) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (e) If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the parties' original intent, and the remaining portions remain in full force and effect, or OMN may at its option instead terminate this Agreement. (f) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (g) You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. OMN may assign this Agreement to any entity at its sole discretion. (h) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns.