5/21/2010

READ CAREFULLY. THE FOLLOWING TERMS AND CONDITIONS ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU ("YOU" AND "YOUR") AND Network Domain LLC ("Network Domain LLC" "WE," "US," OR "OUR”) THAT GOVERNS YOUR USE OF Network Domain LLC's NDCTV SERVICES AVAILABLE AT http://www.NDCTV.com/, http://www.AppServices.net OR ANY OTHER SITES LAUNCHING THE NDCTV SERVICES OR ANY SET-TOP-BOX OR SMART PHONE EMBEDDED PLAYER COMPONENTS (COLLECTIVELY, THE "SERVICE").

YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE DECLINE AND CEASE USING ANY PART OF THE SERVICE. YOUR USE OF THE SERVICE IS CONDITIONED ON THE ACCEPTANCE OF THESE TERMS.

AGE REQUIREMENT

YOU ARE NOT AUTHORIZED TO SIGN-UP FOR THE SERVICE IF YOU ARE UNDER THE AGE OF 18, EVEN IF YOU HAVE ACCEPTED THE TERMS OF THIS AGREEMENT, YOUR USE IS NOT PERMITTED OTHER THAN AS A SUB ACCOUNT SETUP BY A PARENT OR GUARDIAN, OTHERWISE YOU MUST IMMEDIATELY DELETE YOUR ACCOUNT AND CEASE ALL USE OF THE SERVICE.

DESCRIPTION OF SERVICE

Streaming Content. The Service allows you to select, access and view audio-visual Content, such as movies, videos, photos, texts and graphics, as well as related “Supplemental Content” or digital information ("Content"). Among other things, the Service may contain Content with nudity, sex, drug references, violence, pornography, erotic images, explicit language and other materials which may be offensive or unsuitable for all audiences. Network Domain LLC shall have no liability or responsibility to you for any such Content that may be available in connection with the Service that you might find objectionable. Network Domain LLC only provides back end technologies and player components, Network Domain LLC never directly loads content into the system.  

PC Software. To access the Service, you must use a proprietary media player via a download which is installed on your personal computer or use web page embedded player. You may also be required to install other software made available through the Service (these applications are referred to as “PC Software”). Other than PC Software, you are responsible for all software, hardware, systems and/or Internet connections (including the payment of all fees and costs) to access or use the Service.

Set-Top-Box & Smart Phone Software. To access the Service, you must use the proprietary media player embedded in your hardware. You may also be required to install other software made available through the Service (these applications are referred to as “STB Software”). Other than STB Software, you are responsible for all software, hardware, systems and/or Internet connections (including the payment of all fees and costs) to access or use the Service.

Internet connectivity and other events beyond Network Domain’s reasonable control may delay, disrupt or block access to Content made available on the Service. Your sole remedy with respect to Content that is purchased will be a refund at the discretion of the provider of the content, subscription fee(s) if any, prorated to reflect the actual “downtime” or time the Service was not available to you.

Subscription Service. In addition to free Content, the Service may also offers certain Content exclusively through a fee-based “Subscription Service.” If you choose to purchase a Subscription Service, you will be charged the prices applicable to the selected Subscription Service on a recurring basis as further described below. You may on a show by show basis turn on and off your advertising if you want to pay for the content rather than have advertiser sponsor support the content.

Third Party Offerings. The Service may present links to third party websites, products or services not owned or operated by Network Domain LLC. Network Domain LLC is not responsible for the availability of these sites or any of their contents. You agree that Network Domain LLC, its suppliers and licensors shall not be liable, directly or indirectly, for any damage or loss associated with your use of third party sites, products or services made available through any such site(s).

PERMISSION TO ACCESS THE SERVICE

Subject to your continued compliance with the terms of this Agreement, Network Domain LLC grants you a limited right to download and install the PC Software and to access the Service solely for your personal, noncommercial use.

The Service (including Content) and PC Software are provided for your individual home entertainment purposes only. You may not rebroadcast the Service, copy or display any Content or otherwise make the Service or PC Software or Set-Top-Box software or Smart Phone software available for commercial purposes.

Content is not owned by Network Domain LLC, its suppliers and/or licensors may provide content services to you that maybe owned by them or they may be providing services for other content owners. All content is copyrighted and protected by applicable intellectual property laws. You agree that the owners or rights holders that license their Content for display in the Service are intended third-party beneficiaries under this Agreement with the right to enforce the provisions that directly concern their Content. You may not download, capture, or copy Content or attempt (or support others' attempts) to circumvent, reverse engineer, decrypt, transcode, or otherwise alter or interfere with any security or digital rights management technologies used in connection with the Content or any part of the Service.

All rights not expressly granted to you in this Agreement are reserved to Network Domain LLC and/or its licensors and/or content owners.

U.S. USE ONLY

Currently, the Service is only available to residents of the United States. You may not access, or attempt to access or use the Service from countries outside of the U.S. You agree to abide by U.S. and other applicable export control laws.

REMEDIES

You agree that any unauthorized use of the Service (including Content), the PC Software or any other materials provided to you in connection with the Service would result in irreparable injury to Network Domain LLC and/or its suppliers or licensors for which money damages would be inadequate. Network Domain LLC, its suppliers and/or licensors, as applicable, reserve the right (in addition to other remedies available at law and in equity) to immediate injunctive relief against you in the event you use the Service in a manner not expressly authorized by this Agreement or by applicable law.

INDEMNITY

You agree to indemnify and hold harmless Network Domain LLCand its agents, employees, representatives, licensors, affiliates, parents and subsidiaries from and against any and all claims, losses, demands, causes of action and judgments (including attorneys' fees and court costs) arising from or concerning your breach of this Agreement and your use of the Service, the PC Software or the Content and to reimburse them on demand for any losses, costs or expenses they incur as a result thereof.

TERMINATION

Network Domain LLC may in its sole discretion terminate this Agreement or suspend access to the Subscription Service at any time without notice to you in the event that you breach (or Network Domain LLC reasonably suspects that you have breached) any provision of this Agreement. If Network Domain LLC terminates this Agreement, or suspends your subscription for any of the reasons set forth in this paragraph, it shall have no liability or responsibility to you and Network Domain LLC will not refund any amounts that you have previously paid.

DISCLAIMERS

THE SERVICE, CONTENT AND THE PC SOFTWARE ARE PROVIDED "AS IS" AND WITHOUT WARRANTY BY NETWORK DOMAIN LLC OR ITS AGENTS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS AND/OR SUPPLIERS (THE "NETWORK DOMAIN LLC  ENTITIES"), AS APPLICABLE, AND TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW THE NETWORK DOMAIN LLC  ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NONINFRINGEMENT. THE NETWORK DOMAIN LLC  ENTITIES DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY OR OTHERWISE. YOU WILL NOT HOLD ANY NETWORK DOMAIN LLC ENTITY RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOU ACCESSING (INCLUDING ANY SOFTWARE OR SYSTEMS YOU USE TO ACCESS) THE SERVICE OR PC SOFTWARE INCLUDING, BUT NOT LIMITED TO, DAMAGE TO ANY COMPUTER, SOFTWARE OR SYSTEMS OR PORTABLE DEVICES YOU USE TO ACCESS THE SAME . NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO ANY OF THE NETWORK DOMAIN LLC ENTITIES.

UNDER NO CIRCUMSTANCES SHALL ANY NETWORK DOMAIN LLC ENTITY BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SERVICE AND/OR THE PC SOFTWARE.

UNDER NO CIRCUMSTANCES SHALL ANY NETWORK DOMAIN LLC  ENTITY BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS, EVEN IF THE NETWORK DOMAIN LLC ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, THE NETWORK DOMAIN LLC ENTITIES SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE. IN NO EVENT SHALL ANY DAMAGES OR LIABILITY OF THE NETWORK DOMAIN LLC ENTITIES EXCEED A TOTAL AGGREGATE AMOUNT EQUAL TO THE GREATER OF AMOUNTS PAID TO NETWORK DOMAIN LLC BY YOU (IF ANY) FOR THE SERVICE.

NOTICE

Network Domain LLC may from time to time modify these terms and post a copy of the amended Agreement at http://www.NetworkDomain.com/. If you do not agree to (or cannot comply with) the Agreement as amended, your sole and exclusive remedy is to stop using the Service or, if applicable, cancel your Subscription Service. You will be deemed to have accepted the Agreement as amended if you continue to use the Service after any amendments are posted.

GENERAL

This Agreement and any additional addenda shall be governed by the laws of the State of California and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary. To the maximum extent permitted by applicable law, you agree that any controversy, dispute or claim arising out of or relating to this Agreement or breach thereof shall be resolved by binding arbitration, and that any arbitration conducted hereunder shall take place in San Diego, California. Judgment on any arbitration award shall be final and may be entered in any court having jurisdiction. The arbitrator's fee and other expenses of the arbitration process shall be shared equally. The parties shall bear their own respective costs and attorneys' fees. California law, to the extent permitted, shall govern all substantive aspects of the dispute. Notwithstanding the foregoing, nothing in this section shall prohibit Network Domain LLC from seeking injunctive relief before an appropriate court to the extent necessary to protect its rights pending resolution of the dispute in accordance with the foregoing provisions. In any action or suit to enforce any right or remedy herein, the prevailing party shall be entitled to recover its costs, including reasonable attorneys’ fees. All notices, requests or other communications shall be in writing and sent via e-mail or US pre-paid post to the authorized representative of the other party. If any part of this Agreement is found to be illegal, unenforceable, or invalid, then that part shall be removed and remaining provisions will continue to be valid and enforceable. Any services provided herein shall be construed to be on an independent contractor basis. No joint venture, partnership, employment, agency or exclusive relationship shall exist between the parties. Any failure to enforce any provision of this Agreement shall not constitute a waiver of such rights. This Agreement comprises the entire agreement between you and Network Domain LLC and supersede all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Any amendment or other modification of this Agreement shall be effective only if in writing and signed by both parties.