TERMS AND CONDITIONS OF USE
Agreement to Terms and Conditions of Use
These Terms and Conditions of Use (“Terms and Conditions of Use”) apply to the access to and use of DAVE Networks’ products (including the proprietary DAVE MEDIA CENTER (“DMC”), software application and its associated User Interfaces (“UI”), including DAVE TV and the XPort desk top box) and the website www.dave.tv ("dave.tv") (collectively the “DAVE Networks Products”). Please read these Terms and Conditions of Use carefully because they are binding upon you. By acknowledging your acceptance below you are agreeing to be bound by all of the Terms and Conditions of Use set forth herein and are granted a limited license to use the DAVE Network Products as contemplated herein. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS OF USE, CLICK ON THE “DO NOT ACCEPT” BUTTON BELOW. AS A RESULT, NO LICENSE WILL BE GRANTED HEREUNDER, AND YOU WILL NOT BE AUTHORIZED TO USE ANY OF THE DAVE NETWORKS PRODUCTS THAT YOU ARE ATTEMPTING TO DOWNLOAD OR ACCESS FOR ANY REASON.
DAVE Networks reserves the right, at its sole discretion, to modify, change, add or remove any portion or portions of these Terms and Conditions of Use, at any time for any reason. Changes to the Terms and Conditions of Use will be posted on the Company’s web site at www.dave.tv. It is your responsibility to check these Terms and Conditions of Use periodically for changes. Your continued use of the DAVE Networks Products following the posting of changes will mean that you accept and agree to the changes. As long as you comply with these Terms and Conditions of Use, DAVE Networks grants you a personal, non-exclusive, non-transferable, limited privilege to enter and use of the products and website.
Ownership
The DAVE Networks Products are owned by DAVE Networks, Inc. ("DAVE Networks"). These Terms and Conditions of Use apply to and all of the DAVE Networks Products and associated sites linked to davenw.com by DAVE Networks, its affiliates, subsidiaries, marketing partners, and licensees, including DAVE Networks’ sites around the world.
Content and Legal Notice
All images, information, text, graphics, UI, visual interfaces, photographs, trademarks, logos, sounds, music, audio, video, artwork and computer code (collectively, “Content”), including but not limited to the design, structure, selection, coordination, expression, look, character, and arrangement of such Content, is owned, controlled or licensed by or to DAVE Networks, and is protected from copyright, patent and trademark infringement under US Law, Foreign Laws, trade dress, and various other intellectual property rights and unfair competition laws. Content may contain inaccuracies, mistakes, or typographical errors. Please notify us or comment by email to legal@dave.tv. Unauthorized use of Content may violate copyright, patent and trademark laws, for which you, the user, alone are responsible.
Except as expressly provided in these Terms and Conditions of Use, no part of our DAVE Network Products and no Content may be copied (by audio, video, digital, or other means), mirrored, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way to any other computer, server, Website or other medium for publication or distribution or for any commercial enterprise, without DAVE Network’s express prior written consent.
Links to Other Sites
DAVE Networks' Products may contain links to other third party websites (“Linked Sites”) which are not under DAVE Networks' control and are made as a matter of convenience. DAVE Networks does not assume any responsibility or liability for any communications or Content available at such Linked Sites. DAVE Networks does not intend links on within the DAVE Networks Products to be referrals or endorsements of the linked entities, and are provided solely for convenience or general information. DAVE Networks is not responsible for the content of linked third-party sites and does not make any representations regarding the content or accuracy of materials on such third-party Web sites. Your interaction with or transactions resulting from navigating to Linked Sites is not the responsibility of DAVE Networks.
Limitations on Use
The limited license granted to you hereunder is subject to limitations on use set forth below. You may not use any program, protocol, hardware, algorithm or methodology (including “spider”, “deep link”, “page scrape”, or “robot”) or any other similar process to access, acquire, copy, download, monitor, “hack”, impede, circumvent, interfere, or control any portion of our products, navigational structure, or Content through any means other than that provided by our products and website in accordance with the Digital Rights Management (“DRM”) rules set forth in the DMC. You may not attempt to gain unauthorized access to any portion of our DAVE Network Products, our servers, Linked Sites, or other linked servers, either through these means or by unlawfully or illegitimately utilizing another’s personal user information (“password mining” or “hacking”). You may not “reverse look up”, seek, trace or “hack” to discover data regarding user information, user names, passwords, or other information related to visitors or users, other than your own information as provided through use of our DAVE Network Products. DAVE Networks reserved the right to bar such activity and pursue legal remedy against such individual(s) or organization(s) who attempt to perpetrate such activity. You agree not to take any action that will create any disproportionate load on the infrastructure of the network, systems, servers or Linked Sites. You agree not to interfere with the proper functionality or any transaction(s) by any user of our DAVE Network Products, including purchases made using our e-commerce checkout.
You may not use any device, hardware, or software to probe, scan, breach, or otherwise monitor or test the activity, vulnerability, or authentication measures of our DAVE Network Products, except with the express prior written permission by DAVE Networks to fulfill their express intent. You may not use our DAVE Network Products to engage in or solicit any illegal activity that violate these Terms and Conditions of Use or infringes on the rights of DAVE Networks or another. DAVE Networks has an anti-piracy policy, and supports the protection of intellectual property rights using Digital Rights Management (DRM). If you violate these Terms and Conditions of Use, you may be prosecuted and all legal remedy may be pursued by DAVE Networks and/or its licensors. If you violate these Terms and Conditions of Use, you agree to destroy all Content for which use if unauthorized immediately and on demand.
You may print materials regarding DAVE Networks™, DAVE TV™, DAVE Media Center™, DMC™, Xport™, and MediaVue™, (including information sheets, media kits, and white papers), and other company information accessible and downloadable from the davenw.com home page, which are purposely made available to the public regarding our products and services; provided 1) you do not copy, rebroadcast, or redistribute these materials in any way, 2) you do not modify the information, 3) you use them only for your non-commercial, personal or educational use, and 4) that you do not copy or redistribute the proprietary and copyrighted language contained at davenw.com or in any of the materials.
You may not misrepresent your identity or imitate another’s identity (pretend you are another person) to gain access to the DMC. You may however have more than one user name and password, and create new accounts with new user names and passwords. You may download Content from the DMC according to the specified Digital Rights Management (“DRM”) rules set forth in the application and instructions. While some Content is provided free of charge after downloading the DMC Software, you may be prompted to purchase for download other Content prior to downloading and viewing it. Video or Audio Advertising may play prior to viewing some Content in the DMC.
Purchases & Other Terms and Conditions
Additional terms and conditions may apply to the purchase of downloadable Content media, specific sections or product features, including contests, promotions, or other features, questionnaires or interactive programming, or the sale of other goods and services by DAVE Networks, all of which terms and conditions are included as part of the entire Terms and Conditions of Use contained herewith. You agree to abide by other such terms and conditions, including where applicable, that you are of sufficient age to enter certain areas of the website (as may be prescribed by Dave Networks or applicable law), download Content, or use other such features provided by DAVE Networks, its subsidiaries, marketing partners, or licensors. Nothing on davenw.com, our DAVE Networks Products, or on any Linked Sites shall be construed to alter this agreement or the Terms and Conditions of Use. Should any portion of the original terms conflict with the applicable Terms and Conditions of Use for the particular section, the latter terms which are applicable and represented shall apply for the service and our DAVE Networks Products.
DAVE Networks may alter or change the Dave Networks Products, or its goods or services and their applicable prices (pricing) or service fees for features, Content, goods or services at any time, without notice. DAVE Networks does not promise to update any of the Content, products, features, look, or services provided. The DAVE Networks’ Products are governed solely by the agreements pursuant to which they are provided, and nothing should be construed to alter such agreements or amend them in any way whatsoever.
Accounts, Passwords and Security
Access to certain features of the DAVE Networks Products may require that you set up an account and provide DAVE Networks a unique user name and password. You are responsible for maintaining the confidentiality of your user name and password and for any and all activity that occurs in your account. DAVE Networks is not responsible for any unauthorized use of your account, and it is your responsibility to notify DAVE Networks immediately if you suspect unauthorized use of your account, password or user name. You may be held responsible for liabilities or loss placed on DAVE Networks through the use of your account, password or user name by another person. You agree not to use the account, password or user name of another individual without the express consent of that account holder. DAVE Networks will not be responsible for any liabilities arising from such unauthorized use.
Disclaimer of Warranty
The Content included on DAVE Networks' Products have been compiled by DAVE Networks from a variety of sources, are provided “as is” or “as available” without warranties of any kind, and are subject to change without notice. DAVE Networks expressly disclaims any warranties, either express or implied, including any warranties of merchantability, accuracy, non-infringement and fitness for a particular or intended purpose. Use of the DAVE Network Products or other Linked Sites is your sole responsibility. DAVE Networks does not imply or promise that the Website, DMC or DAVE TV will be error free or uninterrupted, or that it is free from any viruses or other damaging goods, or that any defects or malfunctions will be corrected or repaired. Use of the Dave Network Products is at your own risk. However, DAVE Networks does intend to make occasional software updates which will occur automatically in an effort to improve its product functionality and improve DAVE Networks, the DAVE BROADCASTING NETWORK (“DBN”), davenw.com, DMC and DAVE TV. Changes may be made at any time, without notice, (yet, should occur seamlessly and invisibly to the user in most cases.) DAVE Networks makes no representations about the reliability, completeness, truthfulness or timeliness of the material or about any results to be obtained from using the DAVE Networks Products.
Limitation of Liability
DAVE Networks shall have absolutely no liability in connection with the services or download of information, Content or data, including without limitation, any liability for damage to your computer hardware, data, information, Content, and business resulting from the Information or the lack of information available on DAVE Networks' Products, or from a virus, worm or other destructive electronic bug. Under no circumstances shall DAVE Networks, its licensors or any third parties which are linked or viewable by the DAVE Networks Products be liable for any damages whatsoever (including, without limitation, incidental and consequential damages, lost profits, or damages resulting from lost data or interruption of business) resulting from use or inability to use or reliance on, the DAVE Networks Products, website and Content, or from the use of the Internet generally, whether based on warranty, contract, tort, or any other legal precedent and whether or not DAVE Networks is advised of or aware of such potential damages. You assume complete and total responsibility for such products use. You agree that your sole remedy against DAVE Networks as a limitation of relief is to stop using the DAVE Network Products or the Content you download. If, notwithstanding the other provisions of these Terms and Conditions of Use, DAVE Networks is found to be liable to you for any damage or loss which arises out of or is in any way connected with your use of the DAVE Networks Products Site or any Content, DAVE Network’s potential liability shall in no event exceed the greater of the sum net total of any download, production, or service fees with respect to any service, feature, download, or Content (not including the purchase price for any DAVE Networks™, Xport™, or MediaVue™ hardware or software products (including DMC or DAVE MEDIA CENTER) or (2) US$100.00. Some jurisdictions do not allow limitations of liability, so the preceding limitation may not apply to you.
The Disclaimer above applies to any damages, liability or injuries caused by any communication delay, computer virus, defect, deletion, delay, disconnection, error, failure of performance, interruption, omission, transmission, line/wiring/broadband/cable failure, theft, or destruction of or unauthorized access to, alteration of the DAVE Networks Products and the DBN, for any reason whatsoever.
DAVE Networks reserves the right to modify, suspend or terminate operation of or access to the DAVE Networks Products for any reason; to modify or change the DAVE Networks Products, and any applicable policies or Terms and Conditions of Use; and to interrupt the operation of the DAVE Networks Product, as necessary to perform routine or non-routine maintenance, error correction, or other changes.
Indemnity
You agree to indemnify and hold DAVE Networks, its owners, directors, shareholders, licensors, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against DAVE Networks by any third party due to or arising out of or in connection with your use of the DAVE Networks Products or Linked Sites.
Copyright Information
A copyright is a property right in an original work of authorship embodied in a medium, whether written, electronic or other physical form. Copyright is recognized in most countries of the world by statutory or common law copyright laws. Copyrightable expressions can take many forms but are usually categorized as dramatic, choreography, computer programs, literary, musical, pantomime, pictorial, graphic, sculptural, film/video/motion pictures, and audio/sound recordings. All content provided by the DAVE Networks’ is the copyrighted property of DAVE Networks, Inc., unless otherwise noted as belonging to one of its publishers or Content providers, and cannot be used without advance written permission from DAVE Networks. All music, videos, audio, sound, and graphics found on this network are the copyrighted property of the organization and/or artists displayed. DAVE Networks prohibits any and all commercial use of Content transmitted or downloaded from the DAVE Networks Products. All Content available from the DAVE Networks Products is intended for personal use only, and DAVE Networks strictly prohibits any unauthorized or illegal duplication, distribution or other use of music, video, audio, sound, graphics or other content obtained by use of the DAVE Networks Products, apart from personal viewing or listening.
Trademark Information
The following are trademarks and service marks of DAVE Networks including DAVENW.com, DAVE Broadcasting Network, DAVE MEDIA CENTER, DMC, Xport, and MediaVue, and including copyrighted nomenclature that is protected by law. Use of these names without the express prior written consent of DAVE Networks is strictly prohibited and may constitute trademark or copyright infringement.
Privacy Policy
From time to time, DAVE Networks and davenw.com may ask you for personal information about yourself and your organization through opt-in correspondence or when you register or download our DMC or Content. For example, when you register with us, we ask for such details as your name, your organization name, your telephone number, and your email address. We also ask you to tell us about categories of information which are of interest to you. We gather this information in order to serve you better, through such services as customization of Content downloadable through the DAVE Networks Products.
DAVE Networks’ policy is not to provide any list of users, user addresses, user email addresses or other such user information to third parties for commercial purposes. However, from time to time DAVE Networks, or DAVE Networks on behalf of it's affiliated partners, will contact you via email, direct mail, fax or other means to make you aware of promotional offerings, prize giveaways, service upgrades, partner/alliance announcements and other generally important information. Additionally, DAVE Networks may occasionally reference your company name in customer lists or press releases issued by DAVE Networks regarding the licensing of the software or Content and/or usage of the DAVE Networks Products. DAVE Networks’ Privacy Policy applies to the Website, DAVE TV and the DAVE Media Center (“DMC”) application, and its terms are made part of the entire Terms and Conditions of Use by this reference. Any conflict between the terms herein and the Privacy Policy shall be governed by the Privacy Policy. A copy of our Privacy Policy may be viewed at our Website at www.dave.tv. If you have any questions regarding this Privacy Policy or any of our terms and conditions, please contact us at legal@dave.tv.
DAVE Networks is the sole owner of the information collected through DMC registration, download and purchase download process. You recognize that Internet connections, e-commerce and downloading media, Content and files from the Internet are never completely private and secure. Every effort has been made to ensure your security and privacy by DAVE Networks. You also understand that when you send a message, information or credit card data through our Website, although our transactions are encrypted, there may be the possibility of another reading or intercepting your data. DAVE Networks recognizes that personal and company information that may be entered may be of a confidential or sensitive nature. DAVE Networks’ applications been designed to be resistant to the inappropriate access or disclosure of such information to other registered and unregistered users.
DAVE Networks is anti-spam. While we may offer several e-mail story notification options to you (for audio, video, photo and Content convenience), they are offered on an opt-in basis, meaning that you must indicate your desire for such services or else you will not receive them. You may opt to have us stop sending these types of e-mail notifications at any time. We may also, infrequently, send single e-mail messages to all our users, to communicate important news or to verify that their account is still active. If you believe that any party may have violated this policy or the privacy of your information in any way, please contact us immediately at legal@dave.tv.
DAVE Networks may disclose information about you if we determine that disclosure is necessary to investigate a complaint regarding your use of the DAVE Networks Products, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) DAVE Network’s rights or property, or the rights or property of visitors to or users of the Website, including DAVE Network’s customers. You acknowledge and agree that DAVE Networks retains rights to all transmittals or communications by you with DAVE Networks through the DAVE Networks Products or any other service offered on or through the DAVE Networks Products, and may also disclose such data and information if required to do so by law or if DAVE Networks determines that such maintenance or disclosure is reasonably necessary to comply with legal process, enforce the Terms and Conditions of Use, respond to legal claims that such information violates the rights of others, or to protect the rights, property or personal safety of DAVE Networks, its employees, agents, licensors, users of or visitors to the Website, as well as the public.
If you have questions, comments or complaints about our service, please write to us at support@dave.tv.
Violation of Terms and Conditions of Use
You agree that DAVE Networks may, at its sole discretion and without prior notice, terminate your access to the DAVE Networks Products and/or block your future access to the DAVE Networks Products, if it determines that you have violated these Terms and Conditions of Use or other agreements or guidelines which may be associated with your use of the DAVE Networks Products. You also agree that any violation by you of these Terms and Conditions of Use will constitute an unlawful and unfair business practice, and will cause irreparable harm to DAVE Networks, for which monetary damages would be inadequate, and you consent to DAVE Networks to obtain any injunctive or equitable relief that DAVE Networks deems necessary or appropriate. These remedies are in addition to any other remedies DAVE Networks may have in law or equity.
You agree that DAVE Networks may, without prior notice and at its sole discretion, terminate your access to the DAVE Networks Products, for cause, which includes (but is not limited to) (1) a self initiated request by you whereby your account is deleted; (2) requests by law enforcement or other government agencies, (3) discontinuance or material modification of the DAVE Networks Products or any service offered on or through the DAVE Networks Products, or (4) unexpected technical issues or problems.
If DAVE Networks does take any legal action against you as a result of your violation of these Terms and Conditions of Use, DAVE Networks will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to DAVE Networks. You agree that DAVE Networks will not be liable to you or to any third party for termination of your access to the DAVE Networks Products as a result of any violation of these Terms and Conditions of Use.
Governing Law; Dispute Resolution
You agree that all matters relating to your access to or use of the DAVE Networks Products, including all disputes, will be governed by the laws of the United States and by the laws of the State of Georgia without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in Fulton County, Georgia, and waive any objection to such jurisdiction or venue. Any claim under these Terms and Conditions of Use must be brought within one (1) month (30 days) after the cause of action arises, or such claim or cause of action is barred. In the event of any controversy or dispute between DAVE Networks and you arising out of or in connection with your use of the DAVE Networks Products, the parties shall attempt, promptly and in good faith, to resolve any such dispute. If we are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to mediation. If the dispute cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law.
Void Where Prohibited
DAVE Networks administers and operates the DAVE Networks Products and Website from its location in Atlanta, Georgia, USA; other affiliate or Linked Sites may be administered and operated from various locations outside the United States. Although the DAVE Networks Products are accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or contained in the DAVE Networks Products or Website are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. DAVE Networks reserves the right to limit, in its sole discretion, the provision, quantity, acceptance, publishing, broadcast, download or hosting of any Content, feature, product or service to any person or geographic area. Any offer for any feature, product or service made within the DAVE Networks Products or website is void where prohibited by local law, rules or regulations. If you choose to access the DAVE Networks Products or website from outside the United States, you do so at your own risk and you are solely responsible for complying with applicable local, regional and National laws.
If any of the provisions of these Terms and Conditions of Use are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms and Conditions of Use, so that these Terms and Conditions of Use shall remain in full force and effect. These Terms and Conditions of Use constitute the entire agreement between you and DAVE Networks with regard to your use of the DAVE Networks Products, and any and all other written or oral agreements or understandings previously existing between you and DAVE Networks with respect to such use are hereby superseded and cancelled. DAVE Networks will not accept any counter-offers to these Terms and Conditions of Use, and all such offers are hereby categorically rejected. DAVE Networks failure to insist on or enforce strict performance of these Terms and Conditions of Use shall not be construed as a waiver by DAVE Networks of any provision or any right it has to enforce these Terms and Conditions of Use, nor shall any course of conduct between DAVE Networks and you or any other party be deemed to modify any provision of these Terms and Conditions of Use. These Terms and Conditions of Use shall not be interpreted or construed to confer any rights or remedies on any third parties.
DAVE Networks provides access to the entire portfolio of DAVE Networks, Inc.’ products, services and software, as well as international data and, therefore, may contain references or cross references to DAVE Networks or licensors products, programs and services that are not announced in your country. Such reference does not imply that those products, programs or services will or will not be available to you.
Preventing Piracy
DAVE Networks believes in supporting the intellectual property rights of its publishers and users, including Content providers, licensors, and other affiliated producers. The DMC utilizes Microsoft DRM to protect the unauthorized use or download of any and all media content displayed on the DAVE Networks Products. DAVE Networks intends to actively engage in industry dialogue that will support the effective use of DRM and the proliferation of legitimate downloading of media (audio, video, music, photos and images) through the DAVE Networks Products with legitimate and secure payment processing for downloads made available by publishers to the DMC. If you are aware of any unlawful or unauthorized use of the DMC or the use of the DMC for illegal or unlawful purposes, please contact DAVE Networks immediately. DAVE Networks is committed to preventing the crime of global software and media piracy, and supports the United States Government, and other stakeholders in their legal and ethical fight against this enormous threat to intellectual property rights and the economy and industry for media and new media. It is important that you manage your use of the DAVE Networks Products so as to not inadvertently violate trademark and copyright laws, therefore you are advised to utilize the Help Tools contained on the site to properly manage your media files, media assets and software. To prevent or report piracy, please contact legal@dave.tv.
Software and Hardware Feedback
DAVE Networks welcomes your comments, questions, and feedback regarding our products and services. To communicate regarding the DAVE Networks Products or the website, please contact support@dave.tv.
Rights and Permissions
If you have questions concerning the use, download, or licensing of DAVE Networks’ copyrighted, trademarked or licensed materials, for example, video footage, music, advertisements or other DAVE Networks’ Content or materials, please submit a request to info@dave.tv .
Submission of Content to DAVE Networks
DAVE Networks is actively seeking Content providers. Please download the DAVE Networks 2005 Media Kit and read the Instructions for Content Publishers. Questions or comments should be referred to publishing@dave.tv. All materials submitted to DAVE Networks become the property of DAVE Networks and will not be returned. Copyrighted and trademarked Content may be published to the DMC on review by the Division of Content Services. DAVE Networks retains the exclusive right to upload any media, files, audio, video, music or advertising to the DMC or the Site and to remove any content at their discretion.
Effective June 1, 2005
DAVE Networks, Inc.
©Copyright 2005, DAVE Networks, Inc. All Rights Reserved.