Terms of Submission


FOX INTERACTIVE MEDIA’S THIRD PARTY DEVELOPER WIDGET UPLOAD TERMS

Effective Date: November [3], 2006

FOX INTERACTIVE MEDIA, INC. (“FIM”) PROVIDES THE SPRINGWIDGETS SOFTWARE DEVELOPMENT KIT (“SDK”) AND THE SPRINGWIDGETS PLATFORM TO YOU WHICH MAY BE UPDATED BY FIM FROM TIME TO TIME WITHOUT NOTICE TO YOU. BY SUBMITTING A WIDGET (“SOFTWARE SUBMISSION”) TO THE WIDGET GALLERY, OR THROUGH ANY OTHER MEANS AS A WAY OF TRANSMITTING OR PROVIDING YOUR WIDGET FILES TO FIM OR A THIRD PARTY, AS APPLICABLE, AND/OR CLICKING ON THE ‘I ACCEPT’ BUTTON BELOW, YOU (EITHER ON BEHALF OF YOURSELF AS AN INDIVIDUAL OR ON BEHALF OF AN ENTITY AS ITS AUTHORIZED REPRESENTATIVE) AGREE TO ALL OF THE FOLLOWING TERMS OF SUBMISSION (“TOS”) REGARDING YOUR USE OF THE SPRINGWIDGETS PLATFORM AND/OR SPRINGWIDGETS SDK , AND THE FIM TERMS OF SERVICE LOCATED AT http://www.springwidgets.com/legal/terms/. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, CLICK ON THE 'CANCEL' BUTTON. THIS WILL CANCEL THE INSTALLATION.

1. Definitions.

“SpringWidgets SDK” means a programming package that enables a programmer to develop applications for one or more platform. The SpringWidget SDK can include, but is not limited to, one or more APIs, programming tools, and documentation.

“SpringWidgets Platform” means the execution layer and operating environment for running Widgets.

“Widgets” means mini-programs or windows containing content that appears on a computer desktop and/or browser.

2. Term; Termination and Survival.

This TOS is considered effective as of the Effective Date written above and shall remain in full force and effect unless earlier terminated as provided herein. In the event FIM ceases to make the SpringWidgets Platform and/or SpringWidgets SDK available as set forth herein, this TOS shall automatically terminate. This TOS shall terminate automatically if you fail to comply with any of the limitations described in this TOS. No notice shall be required to effectuate such termination. Upon termination, you must cease development of any Widgets leveraged off of the SpringWidgets Platform immediately. Sections 8 through 14 of this TOS shall survive the termination of this Agreement. You can also find the most recent version of the TOS at http://www.springwidgets.com/legal/tos/.

3. The SpringWidgets Platform and/or SpringWidgets SDK.

No Internet Connection Equipment Provided. FIM shall not be obligated to, and you acknowledge that FIM will not, provide any bandwidth, modem, computer, or any other equipment, system or connectivity for you to connect to the Internet. You shall be solely responsible for all modems, computers, operating systems connection devices and bandwidth necessary for connecting to the Internet through which you can access the SpringWidgets Platform and/or SpringWidgets SDK.

Revision of the SpringWidgets Platform and/or SpringWidgets SDK. FIM may modify, suspend or discontinue any aspect of the SpringWidgets Platform and/or SpringWidgets SDK at any time. FIM may also impose limits on certain features and services or restrict your access to parts or all of the SpringWidgets Platform and/or SpringWidgets SDK without notice or liability of any kind.

No Resale of SpringWidgets Platform and/or SpringWidgets SDK. You agree that this TOS is personal to you and that you may not resell, lease, license, assign, redistribute or otherwise transfer any portion of the SpringWidgets Platform and/or SpringWidgets SDK.

No Warranty of Lawfulness of SpringWidgets Platform and/or SpringWidgets SDK. FIM does not represent or warrant that every action you take with regard to your account and related activities in connection with the SpringWidgets Platform and/or SpringWidgets SDK will be lawful in any particular jurisdiction. It is incumbent upon you to know the laws that pertain to you in your jurisdiction and act lawfully at all times when using the SpringWidgets Platform and/or SpringWidgets SDK.

Monetization. FIM hereby retains the right, in its sole discretion, to implement a monetization framework and facilitation for revenue sharing, which may include, without limitation, advertising, against the sale and distribution of any Widget leveraging the SpringWidgets Platform and/or SpringWidgets SDK.

Fees and Payments. FIM reserves the right to charge fees for future submissions of Software Submissions in FIM’s sole discretion. If FIM decides to charge for Software Submissions, such charges will be disclosed to you in advance.

4. License and Proprietary Rights.

License. During the Term, FIM hereby grants to you, and you hereby accept, a personal, non-transferable, non-commercial, non-exclusive, limited, revocable license, to download and use the SpringWidgets Platform and/or SpringWidgets SDK (where applicable, in executable, object code form only) solely on your computer. Nothing herein shall be interpreted to mean, and FIM does not grant you any right, title or license in any FIM materials or other proprietary images, trademarks, artwork, copy, information, data, knowledge, computer software or any other material or information of any kind.

You hereby grant to FIM and its affiliates a non-exclusive, worldwide, fully paid up, royalty free right and license to store, archive, distribute, transmit, publicly display, and publicly perform the Software Submission via the Internet.

No Sublicense. Nothing herein shall be interpreted to mean, and FIM does not grant you, any right or license to enter into sublicenses or redistribution agreements with respect to any portion of the SpringWidgets Platform and/or SpringWidgets SDK.

Copyright Notices. The SpringWidgets Platform and/or SpringWidgets SDK may be protected by copyright and or trademark pursuant to U.S. copyright and/or trademark laws, international conventions and other copyright and/or trademark laws, and is owned or controlled by FIM. You will abide by any and all additional copyright notices, information, or restrictions contained in the SpringWidgets Platform and/or SpringWidgets SDK or as FIM otherwise may impose from time to time.

No Derivative Works. You represent, warrant and covenant that you shall not reverse engineer, decompile, translate, modify, or develop derivative works based on, the SpringWidgets Platform and/or SpringWidgets SDK.

No Contest of Rights. You acknowledge and agree that both during and after the Term, you shall not directly or indirectly contest or aid in contesting the validity or ownership of the SpringWidgets Platform and/or SpringWidgets SDK or take any action whatsoever in derogation of FIM’s rights therein or in breach of any terms and conditions contained in this herein.

Reservation of Rights. Any and all rights to use the SpringWidgets Platform and/or SpringWidgets SDK not expressly granted to you under this Agreement are hereby reserved for FIM. Nothing contained in this Agreement shall affect, impair, or limit in any way FIM’s rights to exploit fully any or all of the SpringWidgets Platform and/or SpringWidgets SDK.

Proprietary Rights. You acknowledge and agree that FIM owns and shall retain all rights, title and interest in and to the SpringWidgets Platform and/or SpringWidgets SDK, including, without limitation, all copies thereof and all rights to patents, copyrights, trademarks, service marks, trade secrets and other intellectual property rights inherent therein and appurtenant thereto.

No License to FIM Trademarks. Nothing herein shall be interpreted to mean, and FIM does not grant you any right or license in any FIM trademark, tradename, service mark, insignia, slogan, name, emblem, logo, symbol, design and/or other identifying characteristics owned by or associated with FIM, its subsidiaries or affiliates, in any manner whatsoever.

5. Prohibited Activity.

You shall not (i) use the SpringWidgets Platform and/or SpringWidgets SDK to develop or submit a Widget that constitutes, promotes, or is used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code, counterfeit goods, items subject tot US embargo, hate materials (e.g. Nazi memorabilia), goods made from protected animal/plant species, recalled goods, hacking/surveillance/interception/descrambling equipment, cigarettes, illegal drugs and paraphernalia, unlicensed sale of prescription drugs and medical devices, pornography, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, unlicensed trade or dealing in stocks and securities, gambling items, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or even tickets, non-packaged food items, weapons and accessories;
(ii) use the SpringWidgets Platform and/or SpringWidgets SDK to develop or submit a Widget that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, or in any manner inconsistent with this TOS;
(iii) use the SpringWidgets Platform and/or SpringWidgets SDK to develop or submit a Widget intended to derive income, whether for direct commercial or monetary gain or otherwise, without FIM’s prior, express, written permission.

6. Privacy.

This TOS and your use of the SpringWidgets Platform and/or SpringWidgets SDK are governed by the FIM Privacy Policy which may be found at http://downloads.fimlabs.net/foxdesktop/privacy.php.

7. User Tracking.

You acknowledge that during your use of the SpringWidgets Platform and/or SpringWidgets SDK, and in order to get a better understanding of user behavior, FIM may, through the use of cookies or otherwise, track user behavior in a manner consistent with the FIM Privacy Policy (to which a link is attached in Section 6 above) including, without limitation, tracking (i) the number of people who download the SpringWidgets Platform and/or SpringWidgets SDK, (ii) the number of people actively using the SpringWidgets Platform and/or SpringWidgets SDK on a per day, per week, per month and per year basis, (iii) the length of time users spend with the SpringWidgets Platform and/or SpringWidgets SDK running, and (iv) click-thrus within areas of the SpringWidgets Platform and/or SpringWidgets SDK.

8. Disclaimer of Warranties.

THE SPRINGWIDGETS PLATFORM AND/OR SPRINGWIDGETS SDK, INCLUDING, WITHOUT LIMITATION, SOFTWARE, DOCUMENTS, FUNCTIONS, MATERIALS, GRAPHICS, AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH OR SENT VIA THE SPRINGWIDGETS PLATFORM AND/OR SPRINGWIDGETS SDK, IS PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMISSIBLE BY LAW, FIM AND ITS SUBSIDIARIES AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER ABOUT: (A) THE MATERIALS, INFORMATION AND FUNCTIONS MADE ACCESSIBLE BY THE SOFTWARE USED ON OR ACCESSED THROUGH THE SPRINGWIDGETS PLATFORM AND/OR SPRINGWIDGETS SDK; (B) THE ABILITY OF THE SPRINGWIDGETS PLATFORM AND/OR SPRINGWIDGETS SDK TO WORK WITH ANY PARTICULAR COMPUTER; AND/OR (C) ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SPRINGWIDGETS PLATFORM AND/OR SPRINGWIDGETS SDK. FIM DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SPRINGWIDGETS PLATFORM AND/OR SPRINGWIDGETS SDK OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SPRINGWIDGETS PLATFORM AND/OR SPRINGWIDGETS SDK OR THE SERVERS THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
FIM DOES NOT WARRANT THAT YOUR ACTIVITIES OR USE OF THE SPRINGWIDGETS PLATFORM AND/OR SPRINGWIDGETS SDK IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, SPECIFICALLY DISCLAIMS SUCH WARRANTIES. YOU UNDERSTAND THAT BY USING ANY OF THE FEATURES OF THE SPRINGWIDGETS PLATFORM AND/OR SPRINGWIDGETS SDK, YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SPRINGWIDGETS PLATFORM AND/OR SPRINGWIDGETS SDK. FURTHER, FIM AND ITS SUBSIDIARIES AND AFFILIATES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
FIM AND ITS SUBSIDIARIES AND AFFILIATES SHALL NOT BE LIABLE FOR THE USE OF THE SPRINGWIDGETS PLATFORM AND/OR SPRINGWIDGETS SDK AND ANY ERRORS CONTAINED THEREIN. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THIS AGREEMENT.

9. Release and Waiver.

To the maximum extent permitted by applicable law, you hereby release and waive all claims against FIM, its employees, agents and representatives from any and all liability for claims, damages (actual and/or consequential), costs and expenses (including litigation costs and attorneys’ fees) of every kind and nature, arising from or in any way related to your use of the SpringWidgets Platform and/or SpringWidgets SDK, any Widget leveraging the SpringWidgets Platform and/or SpringWidgets SDK, or any related platforms or processes for uploading, hosting, and distributing any such Widget. If you are a California resident, you waive your right under California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” You understand that any fact relating to any matter covered by this release may be found to be other than now believed to be true and you accept and assume the risk of such possible differences in fact. In addition, you expressly waive and relinquish any and all rights and benefits which you may have under any other state or federal statute or common law principle of similar effect, to the fullest extent permitted by law.

No Waiver of Rights by FIM. FIM’s failure to exercise or enforce any right or provision of the Terms of Submission shall not constitute a waiver of such right or provision.

10. Limitation of Liability.

UNDER NO CIRCUMSTANCES SHALL FIM BE LIABLE FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, OR THE PERFORMANCE OF, THE SPRINGWIDGETS PLATFORM AND/OR SPRINGWIDGETS SDK, EVEN IF FORESEEABLE OR FIM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL FIM’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED ONE HUNDRED DOLLARS ($100).

11. Indemnity.

You agree to defend, indemnify and hold harmless FIM with respect to any and all costs, claims, demands, investigations, liabilities, losses, damages, judgments, settlements, costs and expenses, including attorneys’ fees arising out of or in connection with this Agreement, including, without limitation, your use of the SpringWidgets Platform and/or SpringWidgets SDK. Notwithstanding the foregoing, FIM retains the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of actions which are brought against FIM herein under the terms and provisions of this Section 11 and in no event shall you settle any such claim without FIM’s prior written approval.

12. Governing Law; Jurisdiction and Venue.

THIS AGREEMENT AND THE INTERPRETATION OF ITS TERMS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO ITS CONFLICTS OF LAWS RULES. The parties irrevocably submit and consent to the exclusive jurisdiction and venue of the California state courts in and for Los Angeles County, California and the Federal Courts in and for Los Angeles County, California. The parties agree not to raise the defense of forum non conveniens.

13. Notices.

Whenever, under the provisions of this TOS, you are required or permitted to give notice to FIM, you shall give the notice in writing. It shall be deemed given either when delivered personally, or by courier, or three days after mailing, postage prepaid by registered or certified mail, return receipt requested, addressed to FIM at the following address:

SpringWidgets/FIMLabs
c/o Fox Interactive Media
407 N. Maple Drive
Beverly Hills, CA 90210

Whenever, under the provisions of this TOS, FIM is required or permitted to give notice to you in writing, FIM may send an e-mail to the address provided by you when you registered for the SpringWidgets Platform and/or SpringWidgets SDK. If you have not provided an accurate e-mail address, FIM may, but is not obligated to, send a notice to you in any reasonable way.

14. Miscellaneous.

This TOS contains the sole and entire agreement between the parties with respect to the use of the SpringWidgets Platform and/or SpringWidgets SDK and supersedes any and all other prior written or oral agreements between them. Captions contained in this TOS are inserted only as a matter of convenience or for reference and in no way define, limit, extend, or describe the scope of this TOS or the intent of any provision of this TOS. It is the intent of the parties that neither this TOS, nor any covenant in this TOS, shall be construed against either party pursuant to the common law rule of construction against the drafter. It is the intent of the parties that said rule not be applicable to this TOS. If any provision of this TOS shall be held invalid or unenforceable by any court of competent jurisdiction or as a result of future legislative action, such holding or action shall be strictly construed and shall not affect the validity or effect of any other provision of this TOS.