1. Limited License & Use of the Service
(2) Motosho does not review or pre-screen the contents of electronic data uploaded or posted to the Service by Authorized Users (as defined below).
(3) You agree not to reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service, or any portion of the Service, including, but not limited to the HTML or any visual design elements without the express written permission of Motosho.
(4) You agree not to modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service, Motosho, or any other software or service provided by CKS Group, LLC.
(5) You agree not to use the Service in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of these Terms of Service.
(6) You agree not to use the Service to upload, post, host, or transmit unsolicited bulk e-mail “Spam”, short message service “SMS” messages, viruses, self-replicating computer programs “Worms” or any code of a destructive or malicious nature.
(7) The Service is protected by the copyright laws of the United States and international copyright laws and treaties, as well as other laws and treaties. Except for the non-exclusive license granted pursuant to this Agreement, you acknowledge and agree that all ownership, license, intellectual property and other rights and interests in and to the Service shall remain solely with CKS Group, LLC.
(8) Authorized Users who configure the Service to share or make available certain Content to the public, are deemed to acknowledge and agree that everyone will have access to such shared Content (“Public Content”). CKS Group, LLC reserves the right, at any time, in its sole discretion, to take any action deemed necessary with respect to Public Content that violates these Terms of Service, including, but not limited to, removal of such Public Content.
(9) CKS Group, LLC reserves the right, at any time, if your bandwidth usage exceeds 5 gigabytes per month (5Gb/month), or significantly exceeds the average bandwidth usage of other Authorized Users (as determined solely by CKS Group, LLC), to immediately disable your subscription or throttle your file hosting until you can reduce your bandwidth consumption.
(10) CKS Group, LLC reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Service, with or without notice. Continued use of the Service following any modification constitutes your acceptance of the modification.
(11) CKS Group, LLC reserves the right to temporarily suspend access to the Service for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will endeavor to provide reasonable notice prior to any such suspension.
Escrowed Data to such Subscriber; and c) upon authentication of the Subscriber by the Escrow Agent, the Escrowed Data will be transmitted digitally, or copied to write-once media and delivered to the Subscriber by courier in an unencrypted format. Optionally, the Escrowed Data may also be copied to write-once media, (CD-ROM or DVD-ROM) on a monthly basis, and stored in a secure climate controlled location maintained by the Escrow Agent.
2. Access to the Service
(1) You are only permitted to access and use the Service if you are an Authorized User. “Authorized User” means an individual subscriber or the partners, members, employees, temporary employees, and contractors of an organization with a subscription to the Service (“Subscriber”). Authorized Users are required to provide their full legal name, a valid email address, and any other information requested by the Service.
(2) In order to subscribe to the Service, a Subscriber must create an account. During the subscription process, each Authorized User will choose or will be provided with a unique identifier to access and use the Service (“Username”). The Username shall only be used by the Authorized User to whom it is assigned, and shall not be shared with, or used by any other person, including other Authorized Users.
(3) Each Subscriber shall designate one or more Authorized Users as administrators for the Subscriber’s subscription (each an “Administrator”). Each Subscriber may have multiple Authorized Users, and the Administrator will manage the list of active Authorized Users associated with the subscription. The Administrator will deactivate an active Username if the Administrator wishes to terminate access to the Service for any particular user.
(4) Subscribers are responsible for all use of the Service by Authorized Users on the list of active Authorized Users associated with their subscription to the Service.
(5) You agree that all access to and use of the Service via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Service is strictly prohibited. Notwithstanding the foregoing, CKS Group, LLC grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. CKS Group, LLC reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service (e.g., comments, email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Service with respect to their Content.
(6) Notwithstanding section 2(5), Authorized Users are permitted to access and use the Service using an Application Program Interface (“API”) subject to the following conditions:
(a) Any use of the Service using an API, including use of an API through a third-party product that accesses and uses the Service, is governed by these Terms of Service;
(b) CKS Group, LLC shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if CKS Group, LLC has been advised of the possibility of such damages), resulting from any use of an API or third- party products that access and use the Service via an API;
(c) Excessive use of the Service using an API may result in temporary or permanent suspension of access to the Service via an API. CKS Group, LLC, in its sole discretion, will determine excessive use of the Service via an API, and will make a reasonable attempt to warn Authorized User prior to suspension; and
(d) CKS Group, LLC reserves the right at any time to modify or discontinue, temporarily or permanently, access and use of the Service via an API, with or without notice.
(7) The Service may contain links to third party websites that are not owned or controlled by CKS Group, LLC. CKS Group, LLC has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, CKS Group, LLC will not and cannot censor or edit the content of any third-party site. By using the Service, you expressly agree and acknowledge that CKS Group, LLC shall have no liability arising from your use of any third-party website.
(8) CKS Group, LLC may offer trial or free subscriptions to the Service funded by advertisements. CKS Group, LLC reserves the right at any time to modify or discontinue, temporarily or permanently, such subscriptions, with or without notice. Authorized Users using a free subscription shall not block the advertisements.
3. Security of Passwords
(1) Authorized Users and Subscribers shall be responsible for protecting the security of Usernames and passwords, or any other codes associated to the Service known to them, and for the accuracy and adequacy of personal information provided to the Service.
(2) Subscribers will implement policies and procedures to prevent unauthorized use of Usernames, and will promptly notify CKS Group, LLC, upon suspicion that a Username has been lost, stolen, compromised, or misused.
4. Payment, Refunds and Subscription Changes
(1) Subscribers with paying subscriptions will provide CKS Group, LLC with a valid credit card for payment of the annual subscription fees. All subscription fees are exclusive of all federal, state, provincial, municipal or other taxes.
(2) Subscribers with paying subscriptions will be charged the annual subscription fee upon completion of the initial subscription process. Such Subscribers will thereafter be charged on an annual basis forty five (45) days in advance of the subscription end date. All charges are non-refundable.
(3) No refunds or credits will be issued for partial years of service, upgrade/ downgrade refunds, or refunds for any unused portion of the subscription term.
(4) All paying subscriptions must cancel their subscription prior to fifteen (15) days before the end of the then current subscription year to avoid incurring a renewal charge for the following subscription year.
(5) The amount charged on the next billing cycle will be automatically updated to reflect any changes to the subscription, including upgrades or downgrades. Subscription changes, including downgrades, may result in loss of Content, features, or an increase or reduction in the amount of available capacity for Content provided by the Service.
(6) All prices are subject to change upon notice. Such notice may be provided by an e-mail message to the Administrator, or in the form of an announcement on the Service.
5. Cancellation and Termination
(1) Subscribers are solely responsible for canceling their subscription. Subscribers may cancel their subscription at any time by accessing the Service, and clicking on the appropriate link in the global navigation bar at the top of the screen.
(2) CKS Group, LLC in its sole discretion, has the right to suspend or discontinue providing the Service to any Subscriber without notice for non- compliance with these Terms of Service, and pursue any other remedy legally available to it. CKS Group, LLC reserves the sole and exclusive right to decide whether any Content is not in compliance with these Terms of Service.
(3) All Escrowed Data, if any, will continue to remain available for a period of six months upon cancellation or termination of a subscription in accordance with the terms of the Escrow Agreement.
6. Limited Warranty and Limitation of Liability
(1) The Service is provided on an “as is”, “as available” basis and CKS Group, LLC expressly disclaims all warranties, including the warranties of merchantability and fitness for a particular purpose.
(2) CKS Group, LLC, its affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of CKS Group, LLC or its affiliates does not warrant that:
(a) the Service will meet any specific requirements;
(b) the Service will be uninterrupted, timely, secure, or error-free;
(c) the results that may be obtained from the use of the Service will be accurate or reliable;
(d) the quality of any products, services, information, or other material purchased or obtained through the Service will meet any expectations; and
(e) any errors in the Service will be corrected.
(3) CKS Group, LLC, its affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of CKS Group, LLC or its affiliates, shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if CKS Group, LLC has been advised of the possibility of such damages), resulting from:
(a) the use or the inability to use the Service;
(b) the cost of procurement of a substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service;
(c) any unauthorized access to or alteration of Authorized User transmissions or Content;
(d) any price change, suspension or discontinuance of the Service;
(e) any loss of Content, modification to a feature or to the Service itself;
(f) any loss of Content subsequent to a cancellation or termination of a subscription to the Service;
(g) statements or conduct of any third party on the Service; or
(h) any other matter relating to the Service.
7. Use of Content
(1) The Content on the Service, and the trademarks, service marks and logos (“Marks”) on the Service, are owned by or licensed to CKS Group, LLC, subject to copyright and other intellectual property rights under the law.
(2) You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of CKS Group, LLC or the respective licensors of the Content. CKS Group, LLC and its licensors reserve all rights not expressly granted in and to the Service and the Content.
(3) You agree not to circumvent, disable or otherwise interfere with security- related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein.
(4) You understand that when using the Service, you will be exposed to Content from a variety of sources, and that CKS Group, LLC is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against CKS Group, LLC with respect thereto, and, to the extent permitted by applicable law, agree to indemnify and hold harmless CKS Group, LLC, its owners, operators, affiliates, licensors, and licensees to the fullest extent allowed by law regarding all matters related to your use of the Service.
8. Content submitted by You
(1) As an Authorized User you may submit Content to the Service, including video and audio recordings. You understand that CKS Group, LLC does not guarantee any confidentiality with respect to any Content you submit.
(2) You shall be solely responsible for your own Content and the consequences of uploading, submitting and publishing your Content with respect to the Service. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit; and you license to CKS Group, LLC all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms of Service.
(3) For clarity, you retain all of your ownership rights in your Content. However, by submitting such Content to CKS Group, LLC, you hereby grant CKS Group, LLC a perpetual, worldwide, irrevocable, non-exclusive, royalty- free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and CKS Group, LLC’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service.
(4) You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant CKS Group, LLC all of the license rights granted herein.
(5) You further agree that you will not submit to the Service any Content or other material that is (i) contrary to the CKS Group, LLC Policies, currently found at http://www.motosho.com/policies, which may be updated from time to time, or (ii) contrary to applicable local, national, and international laws and regulations.
(6) CKS Group, LLC does not endorse any Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and CKS Group, LLC expressly disclaims any and all liability in connection with Content. CKS Group, LLC does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and CKS Group, LLC will remove all Content if properly notified that such Content infringes on another’s intellectual property rights. CKS Group, LLC reserves the right to remove Content without prior notice.
9. Digital Millennium Copyright Act
(1) If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c) (3) for further detail):
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
CKS Group, LLC’s designated Copyright Agent to receive notifications of claimed infringement is Gorham S. Clark, Clark & Associates, P.C., 108-E South Street, Leesburg, VA 20175, email: email@example.com, fax: 703- 443-1081. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to CKS Group, LLC customer service. You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid.
(2) Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent:
Your physical or electronic signature;
Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in San Francisco, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, CKS Group, LLC may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at CKS Group, LLC’s sole discretion.
(1) Technical support is only provided to Authorized Users with paying subscriptions, and is only available through email correspondence.
(2) You acknowledge and agree that CKS Group, LLC may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
(3) You acknowledge and agree that the technical processing and transmission of data associated with the Service, including Content, may be transmitted unencrypted and involve: (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
(4) The failure of CKS Group, LLC to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
(5) The Terms of Service constitutes the entire agreement between you and CKS Group, LLC and govern your use of the Service, superseding any prior agreements between you and CKS Group, LLC (including, but not limited to, any prior versions of the Terms of Service).
(6) You may not assign your rights or delegate your duties under this license to access the Service without the prior written consent of CKS Group, LLC.
(8) These Terms of Service shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia and the federal laws of the United States of America.