ADDLIVE PRODUCTS TERMS

Last Revised: December 09, 2013

Welcome to AddLive.

These terms and conditions (these “Terms”) apply to the AddLive Products (as defined below) provided by Live Foundry Inc. (d/b/a AddLive) (“AddLive,” “our,” or “we”) via addlive.com (the “Site”). By accessing or using the AddLive Products (as defined below), you agree to be bound by these Terms. If you do not agree to these Terms, do not use any of the AddLive Products. The “Effective Date” of these Terms is the date you first access any of the AddLive Products.

If you are accessing the AddLive Products in your capacity as an employee, consultant or agent of a company (or other entity), you represent that you are an employee, consultant or agent of such company (or other entity) and you have the authority to agree (and be legally bound) on behalf of such company (or other entity) to all of the terms and conditions of these Terms.

For the purpose of these Terms, you and, if applicable, such company (or other entity) constitutes “Customer” or “you”.

Unless otherwise expressly indicated, these Terms apply whether you are using the AddLive Products pursuant to the AddLive Trial or any of the AddLive standard packages.

AddLive reserves the right to change or modify any of the terms and conditions contained in these Terms (or any policy or guideline of AddLive) at any time and in its sole discretion by providing notice that these Terms have been modified. Such notice may be provided by sending an email, posting a notice on the Site, posting the revised Terms on the Site and revising the date at the top of these Terms or such other form of notice as determined by AddLive. Any changes or modifications will be effective 30 days after providing notice that these Terms have been modified (the “Notice Period”). Your continued use of any of the AddLive Products following the Notice Period will constitute your acceptance of such changes or modifications. Therefore, you should review these Terms whenever you access the AddLive Products and at least every 30 days to make sure that you understand the terms and conditions that will apply to your use of the AddLive Products.

If you are an enterprise customer, these Terms do not alter in any way the terms or conditions of the agreement you have with AddLive for any products or services provided by AddLive.

These terms form a binding agreement between you and AddLive.

1. PRIVACY

Please see AddLive’s privacy policy at addlive.com/privacy for information about how AddLive collects, uses and discloses information about users of the Site and AddLive Products.

2. ADDLIVE PRODUCTS AND DEFINITIONS

AddLive Products” means the AddLive Software and the AddLive Services.

AddLive Services” means the AddLive technology and services for real-time streaming of audio, video and data.

AddLive Software” means the AddLive plugins, SDKs, APIs and related code in object code form.

AddLive Support” means the type of technical maintenance and support services for the AddLive Products that you have selected from AddLive’s support offerings listed at addlive.com/support or such other support terms to which AddLive has expressly agreed to in writing. The terms and conditions of the AddLive Support are incorporated into these Terms by reference.

AddLive Trial” means a special AddLive package that enables customers to access the AddLive Products free of charge.

Customer Products” means those products that you own that you intend on integrating with the AddLive Products.

Documentation” means the specifications and descriptions related to the AddLive Products as set forth at addlive.com/features.

End Customer” means an entity that acquires the Integrated Products for its internal use, and not for resale, lease, loan or redistribution.

Intellectual Property Rights” means all trade secret rights, patent rights, copyrights, trademark rights, moral rights, including any applications, continuations or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory or judicial authority.

Integrated Products” means the Customer Products as integrated with the AddLive Software and provided with the AddLive Services.

Open Source Software” means any open source, free, community or other code or libraries made generally available on the Internet without charge, including, without limitation, any code licensed under any version of the Apache, BSD, MIT or Mozilla license, or any other type of open source license.

Service Level Standards” means the service levels located at addlive.com/sla or such other terms to which AddLive has expressly agreed to in writing. The Service Level Standards are incorporated into these Terms by this reference.

Subscription Fee” means the monthly or annual fee you must pay to AddLive in exchange for your rights to the AddLive Products as determined by the AddLive package you selected.

Subscription Period” means the monthly or annual period, during which you have rights to the AddLive Products, as determined by the AddLive package you selected.

Sublicensees” means your distributors, OEMs, resellers and systems integrators.

3. REGISTRATION AND API KEYS

In order to access the AddLive Products, Customer must complete the AddLive registration form provided via the Site. During the registration process or upon the completion of the AddLive Trial, Customer must select an AddLive package (which includes a Subscription Period, Subscription Fees and other terms and conditions). All such information is incorporated into these Terms by reference.

Customer agrees to: (a) provide accurate, current and complete information about Customer as may be prompted by the registration forms via the Site (“Registration Data”); (b) maintain the security of Customer’s password; (c) maintain and promptly update the Registration Data, and any other information Customer provides to AddLive, to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data, any other information Customer provides to AddLive and all API keys provided by AddLive to Customer.

Customer is responsible for safeguarding the password that Customer uses to access the AddLive Products, and Customer agrees to be fully responsible for activities or transactions that relate to Customer’s account, password or API key.

Customer must notify AddLive immediately if Customer learns of an unauthorized use of Customer’s password or API key.

4. GRANTS
AddLive Products

Subject to the terms and conditions of these Terms, AddLive grants to Customer a limited, non-transferable and non-exclusive right, during the term of these Terms, to:

  • use and reproduce the AddLive Software solely to integrate the AddLive Software with the Customer Products in order to create Integrated Products;
  • promote, market, offer to sell and sell, directly or indirectly (via Sublicensees), the AddLive Products solely as part of the Integrated Products to End Customers solely for use by such End Customers’ individual users (“Users”);
  • distribute, directly or indirectly (via Sublicensees), the AddLive Products, solely as part of the Integrated Products, to End Customers;
  • demonstrate the AddLive Products solely as part of the Integrated Products to prospective End Customers;
  • grant End Customers (and their Users) the right to access and use the AddLive Products solely as part of the Integrated Products; and
  • use and reproduce the AddLive Software solely for Customer’s internal backup, testing and support purposes.


5. SUPPORT AND SERVICE LEVEL STANDARDS

During the term of these Terms, AddLive will use commercially reasonable efforts to: (a) provide the AddLive Support; and (b) meet the Service Level Standards. The foregoing does not apply if you have accessed the AddLive Products pursuant to the AddLive Trial.

6. RESTRICTIONS

Except as expressly authorized by these Terms, Customer may not (and must ensure that all Sublicensees, End Customers and Users do not): (a) modify, disclose, alter, translate or create derivative works of the AddLive Products (or any components thereof); (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the AddLive Products (or any components thereof); (c) disassemble, decompile or reverse engineer the AddLive Software (except to the extent and for the express purposes authorized by applicable laws); (d) use the AddLive Products to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data; (e) copy, frame or mirror any part of the AddLive Services; (f) access the AddLive Products in order to build a competitive product or service, or copy any features or functions of the AddLive Products; (g) interfere with or disrupt the integrity or performance of the AddLive Products; (h) attempt to gain unauthorized access to the AddLive Services or their related systems or networks; (i) disclose to any third party any performance information or analysis relating to the AddLive Products; (j) disclose to any third party any terms or conditions of the AddLive package purchased by Company that are not expressly set forth on the Site; (k) develop, promote, market, offer to sell, sell, license or distribute, directly or indirectly, a product or service that completes with the AddLive Products (or any portion thereof); (l) access or use the AddLive Products (or any components thereof) for any illegal, harmful or offensive purpose, or to transmit, store, display, distribute or otherwise make available data or content that is illegal, harmful or offensive or that would encourage, solicit, foster, glorify or provide instructions for any criminal or civil offense; (m) use the AddLive Products (or any components thereof) to store, use or transmit any material that is obscene, pornographic, indecent or sexually explicit, depicts graphic, excessive or gratuitous violence; or is derogatory, demeaning, inflammatory, malicious, defamatory, abusive, offensive or hateful; (n) use the AddLive Products (or any components thereof) to store, use or transmit any data or material that infringes, misappropriates or violates any Intellectual Property Rights, rights of privacy, rights of publicity or any other rights of others; or (o) remove, alter or obscure any proprietary notices in or on the AddLive Products including copyright notices.

7. OWNERSHIP AND RESERVATION OF RIGHTS

As between Customer and AddLive and subject to Section 4 (Grants), Customer owns all right, title and interest in and to the Customer Products, all Customer products and services, Customer’s Marks and any and all Intellectual Property Rights embodied in the foregoing (collectively, the “Customer IP”).

As between Customer and AddLive and subject to Section 4 (Grants), AddLive owns all right, title and interest in and to the AddLive Products (and any and all modifications to or derivative works of the AddLive Products), all Anonymous/Aggregate Data (as defined below), AddLive’s Marks and any and all Intellectual Property Rights embodied in the foregoing (collectively, the “AddLive IP”).

Each party reserves all rights not expressly granted in these Terms, and no licenses are granted by a party to the other party under these Terms, whether by implication, estoppel or otherwise, except as expressly set forth in these Terms.

8. FEES AND PAYMENT TERMS

In exchange for Customer’s rights to the AddLive Products, Customer will pay to AddLive the Subscription Fees. The Subscription Fees do not include taxes. The Subscription Fees are made up of: (a) the fixed annual or monthly payment (whichever is set forth in the package you selected) that is due and payable in advance; and (b) the usage fee (which is set forth in the package you selected) and is due and payable on a monthly basis in arrears.

Unless AddLive states otherwise, all payments must be made: (a) in U.S. Dollars; and (b) by payment card via an authorized AddLive payment processor. If you pay via a payment card, you hereby: (i) authorize AddLive (or its authorized payment processor) to make automatic recurring charges to your designated payment card number in the applicable amount of the Subscription Fees on an annual or monthly basis (as applicable) for the duration of the Subscription Period; (ii) represent and warrant that you are authorized to use and have fees charged to the payment card number you provide to AddLive; and (iii) understand that you may withdraw this consent by emailing AddLive at accounts@addlive.com. Cancellations will be effective immediately. No refunds will be issued.

Notwithstanding any terms to the contrary in these Terms: (a) AddLive, at its sole discretion, may modify its pricing during any Subscription Period and such modifications will be effective as of the directly subsequent Subscription Period; and (b) AddLive will not be obligated to issue any refunds for Subscription Fees paid.

Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. You will be responsible for, and will pay all sales and similar taxes on, all license fees and similar fees levied upon the provision of the AddLive Products provided under these Terms, excluding only taxes based solely on AddLive’s net income. You will indemnify and hold AddLive harmless from and against any and all such taxes and related amounts levied upon the provision of the AddLive Products and any costs associated with the collection or withholding thereof, including penalties and interest.

9. OBLIGATIONS
Professional Services

In the event that Customer elects to have AddLive perform any integration, design, development, operational and other professional services (“Professional Services”), the parties will enter into a separate agreement governing the provision of such Professional Services.

Required Components

Customer acknowledges and agrees that the operation of the AddLive Products is dependent upon Customer ensuring that each End Customer possesses and maintains the hardware and software listed at addlive.com/requirements (which list may be updated from time-to-time by AddLive) (“Required Components”). The list of Required Components is incorporated into these Terms by reference.

End Customer Agreements

Prior to providing an End Customer with access to any Integrated Product, Customer will ensure that each End Customer is subject to an enforceable agreement that includes terms and conditions (a) at least as protective of AddLive and the AddLive Products as those set forth in these Terms and (b) expressly stating that anonymous usage and quality statistics obtained from End Customers and Users use of the AddLive Products may be monitored and stored by AddLive (“End Customer Agreement”). Each End Customer Agreement will be executed in such a manner that it is legally binding upon the applicable End Customer, and Customer will use its best efforts to enforce all End Customer Agreements. Any warranties provided to End Customer with respect to the Integrated Product will be fulfilled by Customer, and AddLive and its licensors will have no obligation to fulfill any warranties or AddLive Support directly to any End Customer or User.

Customer Sublicensees Agreements

Customer acknowledges and agrees that prior to providing a Sublicensee with access to any Integrated Product, Customer will ensure that each Sublicensee is subject to an enforceable agreement that includes terms and conditions at least as protective of AddLive and the AddLive Products as those set forth in these Terms (“Customer Sublicensee Agreement”). Each Sublicensee Agreement will be executed in such a manner that it is legally binding upon the applicable Sublicensee, and Customer will use its best efforts to enforce all Customer Sublicensee Agreements. Notwithstanding any terms to the contrary in these Terms, the use of Sublicensees will not relieve Customer of its obligations under these Terms. Customer will be responsible for all acts or omissions of all of its Sublicensees to the same extent as if such acts or omissions were undertaken by Customer, and for the purposes of these Terms, all acts and omissions of Sublicensees will be deemed to be acts and omissions of Customer.

Implementation

Customer will be responsible for the integration of the AddLive Products with the Customer Product to create the Integrated Products.

10. DATA

Customer understands that AddLive intends to collect anonymous and aggregate statistics regarding the use of the AddLive Services through the Integrated Products (collectively, “Anonymous/Aggregate Data”).

11. FEEDBACK

Notwithstanding any terms to the contrary in these Terms, any suggestions, comments or other feedback provided by Customer to AddLive with respect to the AddLive Products, AddLive Support or AddLive (collectively, “Feedback”) will constitute Confidential Information of AddLive. AddLive will be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind, on account of Intellectual Property Rights or otherwise. Customer acknowledges that any unauthorized disclosure of Confidential Information will result in irreparable injury to AddLive, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, AddLive will be entitled to seek and obtain injunctive relief against any breach or threatened breach by Customer of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to: (a) show any actual damage or irreparable harm; (b) prove the inadequacy of its legal remedies; or (c) post any bond or other security.

12. TERM, TERMINATION AND EFFECTS OF TERMINATION
Term – Standard Term

Unless terminated as set forth in these Terms, the term of these Terms will be for the Subscription Period and thereafter these Terms will automatically renew for successive periods equivalent to the Subscription Period (each a “Renewal”).

Term – AddLive Trial

Subject to the termination rights set forth below, if you are accessing the AddLive Products pursuant to the AddLive Trial, the term of such AddLive Trial is 30 days (unless AddLive expressly otherwise provides in writing).

Termination and Suspension

Customer may terminate these Terms at anytime.

Either party may terminate these Terms for cause: (a) if the other party breaches these Terms and does not remedy such failure within 30 days after its receipt of written notice of such breach; or (b) if the other party terminates its business activities or becomes insolvent, admits in writing to inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority. AddLive may terminate these Terms, for cause, if AddLive reasonably believes that Company has breached any of the terms set forth in Section 6. Further, AddLive may suspend use of the AddLive Products (or any portion thereof) without liability if AddLive is required by any applicable laws to suspend the AddLive Products, and AddLive may terminate these Terms prior to any Renewal with no less than 90 days notice to Customer.

Effect of Termination

Upon any expiration or termination of these Terms: (a) all rights and licenses granted to Customer under these Terms will immediately terminate; (b) Customer will immediately pay to AddLive all amounts due and payable up to the effective date of termination of these Terms; and (c) Customer will promptly return to AddLive all Confidential Information in its possession or destroy all copies of Confidential Information, at AddLive’s sole discretion and direction.

Notwithstanding any terms to the contrary in these Terms, this sentence and Sections 1, 2, 5, 6, 7, 8, 10, 11, 14, 15, 16, 17, 19 and 20 will survive any termination or expiration of these Terms.

13. REPRESENTATIONS AND WARRANTIES
General Representations and Warranties

Each party represents and warrants that: (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation; and (b) it has full corporate power and authority to execute, deliver and perform its obligations under these Terms. Further, Customer represents and warrants that: (i) it will not make any representations or warranties on AddLive’s behalf; (ii) it will not use deceptive, misleading, illegal or unethical practices in fulfilling its obligations under these Terms; (iii) it will use its best efforts to market, promote, offer to sell and sell the AddLive Products (as integrated in the Integrated Products) to End Customers in accordance with the terms and conditions of these Terms; (iv) each Report is true, accurate and complete; and (iv) use the AddLive Products and perform its obligations under these Terms in accordance with all applicable laws, rules, and regulations.

AddLive Products Warranty

If the AddLive Software or AddLive Services do not conform to the Documentation provided by AddLive via the Site, AddLive will use commercially reasonable efforts to promptly adjust, repair or replace such non-conforming AddLive Software or AddLive Services (unless such non-conformity results from a failure to maintain the Required Components or any unauthorized use or combination of the AddLive Products (or any component thereof) with any software, hardware or other item not approved, in writing, by AddLive).

14. DISCLAIMER

YOUR USE OF THE ADDLIVE PRODUCTS IS AT YOUR SOLE RISK. EXCEPT FOR THE SERVICE LEVEL STANDARDS (WHICH DO NOT APPLY DURING THE ADDLIVE TRIAL), THE ADDLIVE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, ADDLIVE DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THESE TERMS, THE ADDLIVE IP AND ANY THIRD-PARTY SOFTWARE WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT ADDLIVE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), AND WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. ADDLIVE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE ADDLIVE PRODUCTS WILL BE ACCURATE OR MEET CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION OF THE ADDLIVE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

15. INDEMNIFICATION

Customer, at its sole expense, will defend AddLive and its directors, officers, employees and agents (“AddLive Indemnitees”) from and against any actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including reasonable attorneys’ fees, costs, penalties, interest and disbursements) arising from or related to Customer IP or your violation (or alleged violation) of these Terms.

16. LIMITATION OF LIABILITY

TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL ADDLIVE BE LIABLE TO CUSTOMER, END CUSTOMERS, USERS OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER, ARISING OUT OF OR RELATED TO THESE TERMS, THE ADDLIVE IP OR ANY THIRD PARTY SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY), EVEN IF ADDLIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO CUSTOMER. FURTHER, IN NO EVENT WILL ADDLIVE’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE FEES PAID BY CUSTOMER TO ADDLIVE DURING THE 6 MONTH PERIOD PRIOR TO THE EVENT UNDER WHICH THE DAMAGES AROSE. NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THESE TERMS: (A) THE SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OF ANY SERVICE LEVEL STANDARDS ARE THE CREDITS PROVIDED UNDER THESE TERMS; (B) ADDLIVE WILL NOT BE LIABLE FOR ANY DISCLOSURE OF, UNAUTHORIZED USE OF AND/OR UNAUTHORIZED ACCESS TO ANY PERSONAL DATA. FOR THE PURPOSE OF THESE TERMS, “PERSONAL DATA” MEANS ANY INFORMATION OR DATA (IN ANY MEDIUM) DISCLOSED OR USED BY CUSTOMER, END CUSTOMERS, USERS OR ANY OTHER PARTIES WITH RESPECT TO THE ADDLIVE PRODUCTS THAT RELATED TO OR IS CAPABLE OF IDENTIFYING ANY PERSON.

17. ARBITRATION

PLEASE READ THE FOLLOWING PROVISIONS CAREFULLY BECAUSE THEY REQUIRE CUSTOMER AND ADDLIVE TO ARBITRATE DISPUTES AND LIMITS THE MANNER IN WHICH BOTH PARTIES CAN SEEK RELIEF.

Customer and AddLive will arbitrate any dispute, claim, or controversy arising from or related to these Terms or the AddLive Products, except that neither Customer nor AddLive is required to arbitrate any dispute in which either party seeks equitable and/or other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS CUSTOMER AND ADDLIVE FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. Customer and AddLive will notify each other of any dispute within 30 days of when it arises and attempt informal resolution before any demand for arbitration. Arbitration will be conducted confidentially in San Francisco, California, by a single arbitrator in accordance with the rules of JAMS (or its successor). Except as expressly provided in these Terms, the arbitrator has the authority to grant any remedy that would otherwise be available in court. The arbitrator will render a written opinion including findings of fact and law, and the award and determination of the arbitrator will bind the parties and will not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The parties will equally share the expenses of the arbitration unless the arbitrator determines to apportion fees and expenses differently. To the fullest extent permitted by applicable law, WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, NO ARBITRATION OR CLAIM UNDER THESE TERMS WILL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE ADDLIVE PRODUCTS, AND NEITHER CUSTOMER NOR ADDLIVE WILL COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.

Customer can choose to reject this agreement to arbitrate (“opt out”) by sending AddLive a written opt-out notice (the “Opt-Out Notice”) to legal@addlive.com within 30 days after the date Customer accepts these Terms for the first time. The Opt-Out Notice must state that Customer does not agree to this agreement to arbitrate and must include Customer’s name, address, phone number and email address. Customer must sign the Opt-Out Notice for it to be effective. This procedure is the only way Customer can opt-out of this agreement to arbitrate. If Customer opts-out of this agreement to arbitrate, all other parts of these Terms will continue to apply.

18. EXPORT MATTERS

Customer represents and warrants that Customer is not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom AddLive is legally prohibited to provide the AddLive Products. Customer may not use the AddLive Products for the development, design, manufacture, production, stockpiling or use of nuclear, chemical or biological weapons, weapons of mass destruction or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide administrative access to the AddLive Products to any person (including any natural person or government or private entity ) that is located in or is a national of any country that is embargoed or highly restricted under United States export regulations.

19. MISCELLANEOUS
Entire Agreement

These Terms (including the terms and conditions incorporated into these Terms by reference) set forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersede all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom.

Governing Law and Dispute Resolution

These Terms will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. The state or federal court in San Francisco County, California, will be the jurisdiction in which any suits should be filed if they relate to these Terms. Prior to the filing or initiation of any action or proceeding relating to these Terms, the parties must participate in good faith mediation in San Francisco County, California. If a party initiates any proceeding regarding these Terms, the prevailing party to such proceeding is entitled to reasonable attorneys’ fees and costs for claims arising out of these Terms.

Independent Contractors

Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.

Assignment

Customer must not assign, delegate or transfer (by sale, merger, operation of law or otherwise) these Terms or any right, title, interest or obligation hereunder without the prior written consent of AddLive. Any attempted or purported assignment, delegation or transfer in violation of the foregoing will be null and void and without effect. AddLive may assign these Terms without Customer’s prior written consent. These Terms will be binding and inure to the benefit of such assignees, transferees and other successors in interest of the parties, in the event of an assignment or other transfer made consistent with the provisions of these Terms.

Third Party Software

Customer acknowledges and agrees that the AddLive Products contain or otherwise use certain third party software (collectively, the “Third Party Software”). A list of Third Party Software (together with the names of the applicable licenses) is set forth at addlive.com/copyrights (and such list may be updated from time to time by AddLive). Customer acknowledges and agrees that the list of Third Party Software (together with the names of the applicable licenses) is incorporated into these Terms by reference, and that Customer comply with the third party licenses applicable to the Third Party Software.

Force Majeure

Except for payments due under these Terms, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including, but not limited to, acts of God (fire, storm, floods, earthquakes, etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of service by any service providers being used by AddLive to host the AddLive Services or to link its servers to the Internet, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party (each a “Force Majeure Event”). In the event of any such delay the date of delivery will be deferred for a period equal to the time lost by reason of the delay.

Electronic Communications

AddLive may choose to electronically deliver all communications with Customer, which may include email to the email address Customer provides to AddLive. AddLive’s electronic communications to Customer may transmit or convey information about action taken on Customer’s request, portions of Customer’s request that may be incomplete or require additional explanation, any notices required under applicable law and any other notices. Customer agrees to do business electronically with AddLive and to receive electronically all current and future notices, disclosures, communications and information and that the aforementioned electronic communications satisfy any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received on the day of receipt as evidenced by such email.

Publicity and Press Release

Customer consents to AddLive’s use of Customer’s name and logo on the Site and AddLive’s marketing materials identifying Customer as a user of the Services and Customer agrees that AddLive may issue a press release identifying Customer as a user of the Services, notwithstanding any terms to the contrary in these Terms.

Severability

If any provision of these Terms is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other provisions of these Terms will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by these Terms is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal or incapable of being enforced, the parties will negotiate in good faith to modify these Terms so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.

20. QUESTIONS

If Customer has any questions regarding the use of the AddLive Products, please email AddLive at legal@addlive.com.