BlastTV Software Systems, Inc., a Delaware corporation ("BlastTV Systems") has developed a proprietary, web-based digital entertainment and advertising network (the "Network") designed to enhance Venue’s customer experience and increase Venue’s sales. By separate BlastTV Network Host Venue Agreement with a Blast TV Systems authorized distributor, (the "Venue Agreement"), Venue has agreed to participate in the Network as a host venue. Venue agrees that its participation in the Network is subject to the following terms and conditions:
a. Content: BlastTV respects and protects the rights of copyright holders and publishers and accordingly require all users of BlastTV to confirm they own the copyright or have permission from the copyright holder to upload all content. BlastTV and BlastTV Software, Inc. comply with the Digital Millennium Copyright Act (DMCA) and other applicable copyright laws, and promptly remove content when notified. Venue agrees that it will only play music from BlastTV music and video channels within its location if it has effective licensing in place from ASCAP, BMI and other appropriate copyright licensing organizations. Copyright infringers may be removed, their accounts terminated and permanently blocked from using BlastTV. Users with suspended or terminated accounts are prohibited from creating new accounts or accessing BlastTVLive.com’s Artist Community features.
b. Public BlastTV Channels: Venue agrees that it owns the copyright or has permission from the copyright holder to upload content to public channels and for content that Venue plays on its BlastTV from its own private channels.
c. Customer Content: Any and all images, text, video or music which are sent to BlastTV by Venue’s customers and then played on Venue’s BlastTV(s) are owned by the sender. Venue agrees that it will not save, download, reproduce, post on its own or other websites or use for marketing purposes, any images, text, video or music sent to it by third parties without the expressed written agreement of the sending party.
e. Accounts, Passwords and Security: Venue is entirely responsible for maintaining the confidentiality of its BlastTV account information, including access passwords, and Venue is responsible for any and all activity that occurs under your account as a result of its failing to keep this information secure and confidential. Venue agrees to notify BlastTV immediately of any unauthorized use of your account or password, or any other breach of security.
8. Disclaimers and Limitation of Liability: BlastTV does not promise that the Network or any software, content or feature of the Network will be error-free or uninterrupted, or that Venue’s use of the Network will provide specific results. The Network and its content are delivered on an "as-is" and "as-available" basis. BlastTV disclaims all warranties, express or implied, including any warranties of merchantability and fitness for a particular purpose. BlastTV disclaims any and all liability for the acts, omissions and conduct of any third parties in connection with or related to Venue’s use of the Network. This disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether the claim is for breach of contract, tort, negligence or any other cause of action. Venue’s sole remedy against BlastTV for dissatisfaction with the Network is to stop using the Network or any such content. Except where prohibited by law, in no event will BlastTV be liable to Venue or its’ customers for any indirect, consequential, exemplary, incidental or punitive damages, including lost profits, even if BlastTV has been advised of the possibility of such damages. This limitation of relief is an essential element of the bargain between the parties.
If, notwithstanding the above provisions of this Agreement limiting the liability of BlastTV, BlastTV is found to be liable to Venue for any damage or loss which arises out of or is in any way connected with Venue’s use of the Network or any content, BlastTV’s liability shall in no event exceed the amount of fees, if any, with respect to any service or feature of or on the Network paid by Venue to BlastTV during the six month period prior to the date of the initial claim made against BlastTV (but not including the purchase price for any hardware or software products related to the Network).
9. Indemnity: Venue agrees to indemnify and hold BlastTV, its officers, directors, members, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against BlastTV by any third party due to, arising out of, or in connection with your use of the Network or any content placed by Venue or its customers on the Network, unless such claim is due to BlastTV’s gross negligence or willful misconduct.
10. Miscellaneous Provisions: The Venue and BlastTV are independent contractors and nothing in this Agreement shall be construed to create a joint venture, partnership, franchise, or any agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other party in any way. Venue may not assign or transfer its rights or obligations under this Agreement, whether by operation of law of otherwise, without BlastTV’s prior written consent. This Agreement shall be governed by all applicable laws of the State of Florida, and any disputes, controversies, or claims in connection with or arising out of this Agreement, its negotiation, breach, existence, validity or termination, shall be referred to mediation, and if not resolved, finally determined by arbitration in Tampa, Florida before a single arbitrator who is a member of the American Arbitration Association, who has completed the Florida Bar Association Qualified Arbitration Course. Such arbitration shall abide by the Commercial Rules of the American Arbitration Association, with the governing law of the State of Florida and the laws of the United States applicable therein. The award rendered by the arbitrator shall be final and binding on all parties, not subject to appeal, and judgment upon the reward rendered by the arbitrator may be entered in any court of competent jurisdiction. Communications between Venue and BlastTV may be through electronic means. For contractual purposes, Venue (a) consents to receive communications from BlastTV in an electronic form; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that BlastTV provides to Venue electronically satisfies any legal requirement that such communications be in writing. The agreement between the parties consists of this Agreement, as well as the terms and conditions described in the BlastTVlive.com website, the terms of which are incorporated into this Agreement by reference. If any provision of this Agreement is unlawful, void or unenforceable, then that provision shall be deemed severable from the remaining provisions and shall not affect their validity and enforceability. No waiver by BlastTV of any breach or default by Venue of any provision of, or failure by BlastTV to exercise in any respect any right or remedy provided in this Agreement shall be deemed to be a waiver of any other breach or default, nor of any other right or remedy, of the same or other nature.