License And Service Agreement

CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS.

BY CLICKING THE “ACCEPT” BUTTON BELOW (“MANIFESTATION OF ASSENT”),
YOU ACCEPT THESE TERMS AND CONDITIONS. 
 
This License and Service Agreement (this “Agreement”) is made and entered into on the date the Manifestation of Assent was made (“Effective Date”) by and between General Media, LLC, a Nevada limited liability company (“GM”) and the natural person who is eighteen (18) years of age or older that indicates the Manifestation of Assent (“User”) (together the “Parties” and individually the “Party”).
 
In consideration of the covenants, representations and warranties set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows (certain terms used herein shall have the meaning ascribed to such terms as set forth in Schedule 1):
 
 
The term of this Agreement shall commence on the Effective Date and, subject to a Termination Event, continue in perpetuity (the “Term”).
 
 
Subject to the terms and conditions of this Agreement, GM hereby grants to User a personal, limited, revocable, non-exclusive, non-transferable, non-assignable license: (a) to execute the executable code of Licensed Software only through the Domain Name utilizing a User account; provided, however, that access to and execution of the executable code of the Licensed Software may, in GM’s sole and absolute discretion, be denied at: (i) certain times reasonably designated by GM for updates, back-ups and/or maintenance of the Enabled Content and/or Licensed Software and/or (ii) other times unexpected and/or outside the reasonable control of GM, including, without limitation, network outages, technical errors, and third Person acts or omissions that prohibit, hinder or otherwise preclude access to and execution of the Licensed Software; and (b) to view and print the Enabled Content only for the User’s personal, noncommercial purposes; provided, however, that nothing in this Agreement shall grant a license to Disclose such Enabled Content to any third Person.
 
3.        Service
 
3.1.         Subject to the terms and conditions of this Agreement and only after GM accepts the Registration, in GM’s sole and absolute discretion and issues a Confirmation to User (whether or not received by User), GM shall use GM’s reasonable efforts to: (a) provide reasonable access to certain Licensed Software through the User Account; provided, however, that User covenants and represents that GM cannot control the Internet or events or activities of third Persons outside of GM’s control and GM shall not be liable for, or be in breach of this Agreement as a result of or related to any unavailability, delay, or malfunction of any Licensed Property associated with, relating to, resulting from, or arising from any cause beyond GM’s control, including, without limitation, war, insurrection, public enemy, acts of God, terrorist acts, changes in Laws, acts or omissions of Governmental Authorities, labor disputes, strikes, and/or power failures and (b) as applicable, deliver product(s) and service(s) identified in the Confirmation within a reasonable period after GM receives payment for such product(s) and service(s)
3.2.         GM shall bear the risk of loss or damage associated with the product(s) identified in the Confirmation until such product(s) are delivered to a common carrier with the delivery instructions identified on the Confirmation (“Delivery”), at which time the User shall bear the risk of loss or damage.
3.3.         In User’s sole cost and expense (and subject to a restocking fee designated by GM from time to time), User may return the product(s) within fourteen (14) days after Delivery and GM shall credit the remainder of the Fees to User’s account. Notwithstanding the foregoing, no credit shall be provided if: (a) the product is returned after fourteen (14) days or (b) the returned product was damaged pursuant to or arising from any intentional, reckless, willful, or negligent act or omission of the User or a third Person after Delivery.
 
 
4.1.         As applicable, User shall pay GM the Fees designated on the Confirmation and as otherwise obligated by User and hereby authorizes GM to charge the Fees to any credit card or electronic payment method approved by GM (in GM’s sole and absolute discretion); provided, however, that if the amount designated on the Confirmation is clearly erroneous GM shall have the right to charge the correct amount upon notice to User.
4.2.         In addition to any other remedies available in this Agreement or otherwise in Law or in equity: (a) GM may limit or suspend access to the Licensed Software or other Licensed Property in the event User fails to timely pay any Fees due to GM pursuant to this Agreement and (b) User shall pay to GM interest on any late payments in an amount that shall be the lesser of: (i) one percent (1%) per month or (ii) the maximum percentage allowed by Law. Payment when due of the Fees by User is of the essence of this Agreement.
4.3.         User shall be solely responsible for payment of Taxes on any transactions set forth herein or undertaken by any Party pursuant to this Agreement, including, without limitation, Taxes imposed by any Governmental Authority on the payment of the Fees, transactions associated with or arising out of any license of the Licensed Property or the provision of any services.
 
5.        User Covenants/Representations/Warranties
 
5.1.         User: (a) has the authority to enter into this Agreement, (b) is voluntarily entering into this Agreement, (c) is at least eighteen (18) years old and (d) shall comply with the terms and conditions of this Agreement;
5.2.         Neither the execution and delivery of this Agreement or any document, agreement or instrument required by this Agreement, nor the consummation of the transactions contemplated herein or therein shall constitute a violation of, or default under, or conflict with, any term or provision of any commitment, indenture, lease or other Contract to which User is a party or by which User is bound;
5.3.         User shall comply with all applicable Laws, including, without limitation, privacy, license, firearm, security, and export Laws;
5.4.         User has read and consents to the Privacy Policy, including, without limitation, that GM may, in GM’s sole and absolute discretion, Disclose User Content to affiliated (by contract, equity or otherwise) Persons;
5.5.         User shall be responsible for all use by User of the Licensed Property, including, without limitation, associated with, related to, or arising from any User ID and password, shall maintain confidentiality the User account name and password and shall immediately notify GM in writing of any Disclosure and/or unauthorized use of such account name and password;
5.6.         User owns or has a right to Disclose all the User Content and the User Content has not, nor shall not, infringe or misappropriate any third Person’s Intellectual Property or otherwise violate any Laws, including, without limitation, any privacy, defamatory or obscenity Laws;
5.7.         To the extent User is deemed an owner of any right, title, or interest (including, without limitation, any Intellectual Property right, title or interest) in and to the Licensed Property, GM Intellectual Property, Confidential Information or any other Intellectual Property which GM has Developed or otherwise has a bona fide claim of ownership (whether arising from this Agreement or otherwise), User hereby assigns any such right, title or interest to GM and shall execute all documents and undertake all actions necessary to effect the clarification of ownership of all such right, title or interest in and to GM and to permit GM to apply for registration of any Intellectual Property right, title and/or interest, as well as maintain any registrations or issuances granted;
5.8.         User shall not view, download or print the Enabled Content for any purpose outside the limited scope set forth in Section 2 without express written consent of GM, such consent granted or denied in GM’s sole and absolute discretion;
5.9.         User shall not charge any Person any amount to: (a) execute the Licensed Software or (b) view, print or otherwise use the Enabled Content;
5.10.      User shall not use any embodiment of Licensed Property in any Media whatsoever, unless such embodiment bears and displays the copyright and mark notices as designated (from time to time) by GM;
5.11.      User shall not Encumber, nor authorize nor enable any Person to Encumber, the GM Intellectual Property or any portion thereof;
5.12.      User shall not Disclose any Content on or through the Domain Name containing a virus, bug, Trojan horse, worm, time bomb, cancelbot, corrupted Content, security breach, any intrusion from internal or external sources, or other similar Content that may damage the operation of the Licensed Property or any Person’s computer or property;
5.13.      User shall not utilize framing technology to enclose any Enabled Content without express written consent of GM, such consent granted or denied in GM’s sole and absolute discretion;
5.14.      User shall not use any meta tags or other Content utilizing GM Intellectual Property without the express written consent of GM, such consent granted or denied by GM, in GM’s sole and absolute discretion;
5.15.      User shall not, and shall not permit any Person to, copy, make derivative works, disassemble, decompile, or reverse engineer the Licensed Property; and
5.16.      User shall in no way represent that User has any right, title or interest in or to the Licensed Property.
 
 
6.2.         All licenses not expressly granted to User pursuant to this Agreement are reserved by GM. User shall not acquire any right, title or interest in and to the Licensed Property. 
 
 
7.2.         User: (a) shall not remove, alter, hide or otherwise diminish or denigrate any notice of confidentiality, secrecy, privacy or proprietary right, title or interest (a “Notice”) that is discernable on or with respect to any Media embodying any Confidential Information; (b) shall not separate or disembody any Confidential Information from any Media embodying or containing Confidential Information provided GM and/or GM’s agent(s) to User; and (c) hereby covenants, represents and warrants that any Media bearing a Notice shall not be necessary to create a presumption that certain Content is Confidential Information.
7.3.         If User is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Confidential Information, User shall provide GM with prompt written notice of such request or requirement so that GM may seek protective orders or other appropriate remedies and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by GM, User nonetheless is legally compelled to disclose Confidential Information to any court or tribunal or else would stand liable for contempt or suffer other censure or penalty, User may, without liability herein, disclose to such court or tribunal only that portion of the Confidential Information which the court requires User to disclose, provided that User exercise best efforts to preserve the confidentiality of the Confidential Information, including, without limitation, by cooperating with GM to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such court or tribunal.
 
 
        User covenants, represents and warrants that any violation of Sections 2, 5 or 7 by User shall cause irreparable injury to GM and shall entitle GM to extraordinary and equitable relief by a court, including, but not limited to, temporary restraining orders and preliminary and permanent injunctions, without the necessity of posting bond or security. 
 
 
THE LICENSED PROPERTY IS PROVIDED “AS IS.” GM PROVIDES NO GUARANTEE OR WARRANTY AND DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS, WHETHER OR NOT IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE LICENSED PROPERTY OR ANY OF THE TRANSACTIONS REASONABLY CONTEMPLATED BY THE PARTIES HERETO PURSUANT TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES (some jurisdictions do not allow the exclusion of implied warranties, so the exclusion of implied warranties may not apply to the User) OR CONDITIONS OF TITLE, NONINFRINGEMENT, COMPLETENESS, ACCURACY, ERROR-FREE, MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT GM KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE, IN FACT, AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING. 
 
 
GM AND GM’S REPRESENTATIVES AND EACH PUBLISHER, DISTRIBUTOR AND/OR AFFILIATE (“GM PARTIES”) SHALL NOT BE HELD LIABLE TO USER ON ACCOUNT OF OR DUE TO BREACH OF THIS AGREEMENT IN OR FOR AN AMOUNT THAT EXCEEDS THE FEES, IF ANY, PURSUANT TO THIS AGREEMENT RECEIVED BY GM FROM USER WITHIN THE THREE (3) MONTHS PRIOR TO TERMINATION OF THIS AGREEMENT AND EACH GM PARTY SHALL NOT BE LIABLE TO USER (OR TO ANY PERSON CLAIMING ANY RIGHT, TITLE OR INTEREST DERIVED FROM OR AS SUCCESSOR TO USER’S RGMHT, TITLE AND INTEREST) FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF CONTENT ARISING OUT OF THIS AGREEMENT, IRRESPECTIVE OF WHETHER THE PARTIES HAVE ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
 
 
11.1.      In addition to any and all other remedies available to GM at law or equity, GM shall have the right to immediately terminate this Agreement, with or without notice, upon the occurrence of any of the following events:
11.1.1.        On the date identified in a five (5) day prior notice sent by GM to User terminating the Agreement and/or the grant of license to User;
11.1.2.        User commits an act of fraud against GM, regardless of whether such act of fraud is a material breach;
11.1.3.        User Discloses Confidential Information or GM Trade Secrets, regardless of whether such Disclosure is a material breach;
11.1.4.        User materially breaches any provision relating to, associated with, or arising from GM Intellectual Property; or
11.1.5.        User otherwise materially breaches this Agreement (including, without limitation, User fails to pay the Fees in accordance with Section 4).
 
 
Notwithstanding any other provision of this Agreement, User shall indemnify and hold GM and GM’s Representatives (the “GM Indemnified Parties”) harmless from and against any Losses incurred by any of the GM Indemnified Parties with respect to, arising from or out of any Claim that relates to or arises out of any act or omission of User (except an act or omission that emanates from an infringement by GM of a third Person’s Intellectual Property), including, without limitation, the misuse of the Licensed Property, alleged breach, or investigation relating to a possible breach, of any legal requirement or of any covenant, representation, warranty or other obligation of User contained in or arising out of this Agreement.
 
 
This Agreement, including, without limitation, the license granted pursuant to Section 2, is personal to User and User shall not assign or transfer any of User’s rights or have assumed any User’s obligations pursuant to this Agreement to and by, respectively, third Persons without the prior written consent of GM, such consent granted or denied at GM’s sole and absolute discretion.
 
 
Waiver by GM of performance of any provision of this Agreement shall not be a waiver of, or prejudice to, GM’s right to require strict performance of the same or any other provision in the future.
 
 
GM may provide any notice by mail, electronic mail, facsimile transmission or posting such notice to the GM’s website (in GM’s sole and absolute discretion) and such notice shall satisfy any legal requirement that communications be in writing.
 
 
16.1.      Unless otherwise specified, all terms and provisions shall be applicable throughout the Term.
16.2.      The provisions herein concerning Intellectual Property shall be construed as independent of any other provision hereof and raising a defense to an obligation of User in this Agreement related to Intellectual Property shall not impair the ongoing duty of User to perform in accordance with User’s own obligations pursuant to this Agreement.
16.3.      If any provision of this Agreement should be held to be void or unenforceable, in whole or in part, by a court of competent jurisdiction, then such court shall correct the defect in a narrowly tailored manner to approximate the manifest intent of the Parties.
16.4.      Sections 4, 5, 6, 7, 8, 9, 10, 11, 12.3, 13, 14, 15, 16, and 17 shall survive any termination of this Agreement.
16.5.      The terms of this Agreement may be changed, waived, discharged or terminated by User only by an instrument in writing signed by an officer of GM.
16.6.      Subject to Section 13, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns. 
16.7.      This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada. User consents to personal jurisdiction, as well as venue for any Claim regarding or arising out of this Agreement in the appropriate state or federal court located in Clark County, Nevada.
16.8.      This Agreement, together with all Schedules and Exhibits, constitutes the entire agreement between the Parties with respect to the licensing of the Licensed Property. No prior or contemporaneous representations, inducements, promises, or agreements, oral or otherwise, between the Parties with respect to the licensing of the Licensed Property shall be of any force or effect.
 

 

  

Schedule 1-Definitions
 
 

“Agreement” shall mean this GM License and Service Agreement.

“Claim” shall mean any demand, complaint, request for redress, assertion of a cause of action or other claim whatsoever.
 
“Confidential Information” shall mean all the Content relating to, used in or arising out of GM’s business, finances or other operations and held by, owned, licensed, or otherwise possessed by GM (whether held by, owned, licensed, possessed or otherwise existing in, on or about GM’s offices, residence(s) or facilities and regardless of how such Content came into being, as well as regardless of who created, generated or gathered the Content), including, without limitation, all Content contained in, embodied in (in any Media whatsoever) or relating to GM’s ideas, creations, works of authorship, works of visual art, business documents, Contracts, licenses, business and non-business relationships, correspondence, operations, manuals, performance manuals, operating data, projections, bulletins, supplier and customer lists and data, sales data, cost data, profit data, strategic planning data, financial planning data, designs, plans, logos, diagrams, motifs, proposed trademarks or service marks, test results, product or service literature, product or service concepts, manufacturing or sales techniques, process data, specification data, know how, show how, Software, data bases, research and development information and data. 
 
“Confirmation” shall mean a writing, sent via electronic mail or other electronic Media (in GM’s sole and absolute discretion) to User confirming receipt of the Registration or as applicable, User’s request for certain product(s) or services(s).
 
“Content” shall mean all material, information, documents, matter, text, Software, data, graphics, drawings, blue-prints, schematics, sketches, computer-generated displays and interfaces, images, photographs and works of whatsoever nature, including, without limitation, all compilations of the foregoing and all results and/or derivations of the expression of the foregoing (all of the foregoing whether in a format now known or hereinafter Developed).
 
“Contract” shall mean all agreements, contracts, understandings, undertakings, obligations, and other documents or matters where there is or was an agreement to be bound.
 
“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of any Person, or the power to veto major policy decisions of any such Person, whether through the ownership of voting securities, by contract, or otherwise.
 
“Develop” shall mean develop, conceive, discover, reduce to practice, create, or otherwise arise out of a Person's efforts in any manner whatsoever and through any means whether now known or hereafter developed.
 
“Disclose” shall mean disclose, disseminate, transmit, publish, post, upload, initiate, distribute, transfer, make available or otherwise convey.
 
“Domain Name” shall mean www.atactv.com and/or other domain names designated by GM from time to time.
 
“Enabled Content” shall mean that certain website, educational, on-line forum, video and/or other Content (other than User Content) resulting from and enabled by execution of the Licensed Software and accessible by the User.
 
“Encumber”shall mean to impose a security interest, pledge, hypothecation, lien, mortgage, or any other encumbrance of whatsoever nature.
 
“Exhibit” shall mean any or all enumerated exhibits each of which shall be deemed attached hereto and incorporated herein by way of the specific reference or references made in this Agreement and any such exhibit shall not be required to be separately executed for such exhibit to form a valid, binding and enforceable part of this Agreement.
 
“Fees” shall mean any and all fees, payments, invoice amounts, charges, or other amounts to be paid by User pursuant to this Agreement, including, without limitation, product purchase amounts and any and all fees normally charged by GM to Persons in similar circumstances for similar licenses at a particular time, as such fees are amended from time to time, in GM’s sole and absolute discretion.
 
“GM Intellectual Property” shall mean the Intellectual Property (other than User Content) owned, held, used, possessed, or licensed by GM, including, without limitation, the Intellectual Property in and to the Licensed Property, Confidential Information and GM Trade Secrets. 
 
“GM Trade Secrets” shall mean Trade Secrets owned, held, used, possessed, or licensed by GM.
 
“Governmental Authority” shall mean any federal, state, county, municipal or other sovereign entity or jurisdiction, as well as all subdivisions, agencies and authorities therein.
 
“Intellectual Property” shall mean all foreign, federal, state and common law trademarks, service marks, domain names, Internet path names and addresses of whatsoever nature, trade dress, copyrights, know-how, show-how, patents, Inventions, mask works, Software, proprietary data, customer lists, strategic plans, financial data, Trade Secrets, all other intangible assets of whatsoever nature and all applications for registration and/or issuance with respect to all the foregoing and whether or not any of the foregoing is registerable or patentable, including, without limitation, with respect to all of the foregoing: (a) all goodwill associated with any and all of the foregoing; (b) all parents, continuations, continuations in part, divisionals, reissues and extensions; and (c) all moral rights associated with any and all of the foregoing.
 
“Inventions” shall mean any idea, invention, technique, modification, process, or improvement (whether patentable or not), any industrial design (whether registerable or not), and any work of authorship (whether or not copyright protection may be obtained for it).
 
“Law” shall mean any constitution, statute, code, rule, regulation or decisional law made by a court of competent jurisdiction or Governmental Authority.
 
“Licensed Property” shall mean the Licensed Software and the Enabled Content, including, without limitation, all Intellectual Property in and to the foregoing.
 
“Licensed Software” shall mean the Software (including any upgrades) identified on the respective Confirmation generally and commercially available from GM through the Domain Name enabling access to educational, safety, security and entertainment Content, blogs and other related products and service functions as made available by GM from time to time.
 
“Losses” shall mean any and all damages, liabilities, costs, charges, expenses, expenditures, fees (including, without limitation, attorneys’, accountants’, experts’, investigators’, witnesses’ and professionals’ fees) and other losses of whatsoever nature.
 
“Manifestation of Assent” shall have the meaning attributed to such term in the opening paragraph of this Agreement.
 
“Media” shall mean any medium of expression or medium in or through which Content may be embodied or Disclosed (whether tangible or intangible, fixed or unfixed), including, but not limited to, a natural person, print, document-based medium, television, facsimile, telex, telephony, radio, satellite, cable, wire, computer-based network, network, magnetic means, optical means, electronic means, Internet, intranet, Software, compact and laser disc, digital video displays, video cassettes, and multi-media and any other method (now known or hereafter Developed) for the publication, retention, conveyance, possession or holding of Content.
 
“Person” shall mean any natural person, corporation, general partnership, limited partnership, limited liability partnership, limited liability company, trust, association, organization or other entity of whatsoever nature or character.
“Privacy Policy” shall mean the document in form and substance similar to the Privacy Policy attached hereto and incorporated herein as Exhibit A, as amended from time to time, in GM’s sole and absolute discretion, without requirement of notice by GM.
 
“Registration” shall mean a request by User submitted to and received by GM to enter into this Agreement.
 
“Representatives” shall mean all shareholders, directors, officers, strategic advisors, employees, agents, representatives, attorneys, and accountants whether holding equity in, retained by, employed by, commissioned by or otherwise Controlled by a subject Person.
 
“Schedule” shall mean an enumerated schedule each of which shall be deemed attached hereto and incorporated herein by way of the specific reference or references made in this Agreement. 
“Section” shall be deemed a reference to an enumerated provision of this Agreement. 
 
“Software” shall mean source code, object code, executable code, or other program or code format whatsoever, whether now known or hereinafter Developed.
 
“User ID” shall mean a combination of letters, numbers and/or symbols (acceptable to GM in its sole and absolute discretion) used to identify User.
 
“Taxes” shall mean sales, use, excise and other taxes, duties or imposts of whatsoever nature, other than income taxes imposed by Governmental Authority.
 
“Term” shall mean have the meaning attributable to such term in Section 1.
 
“Termination Event” shall mean any or all of the events that trigger the last day this Agreement is in effect, either by way of termination or expiration, including, without limitation, the events set forth in Section 12.
 
“Trade Secrets" shall have the meaning attributable to such term in the Uniform Trade Secrets Act as enacted, amended and promulgated in Nevada from time to time.
 
“User Account” shall mean the culmination of the Registration process whereby User provides GM certain information including, without limitation, a valid e-mail address and User selects a password and User ID.   
 
“User Content” shall mean any Content submitted to GM (including, without limitation, through the Domain Name) by User.
 
 

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