PLEASE READ THIS AGREEMENT CAREFULLY. TO COMPLETE YOUR ORDER FOR THE PRODUCT/AND OR SERVICE YOU’VE REQUESTED, YOU MUST FIRST READ AND ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT ("AGREEMENT"). SUBMISSION OF YOUR ORDER CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS.

Section 1. Purpose of Site. VideoBookmark.com, (a California based Company) hereby called ("VideoBookmark"), is an Internet Service Provider and host of business and personal streaming media and related components to be used to supplement the user’s ("Customers") web site. VideoBookmark’s services include, but are not limited to: the conversion of Customers multimedia materials into a streaming video or audio format ("streaming media"), the hosting of Customers streaming media and related components on VideoBookmark’s server (that portion of the server allocate for Customers use is hereafter referred to as "Customers Allotted Space") and the granting of permission to link Customers web site to Customers Allotted Space. VideoBookmark may provide any other services, as necessary, for the operation of its business.

Section 2. Length of Agreement.

1) The term of this Agreement shall be one month from the Effective Date of the Agreement or for the specified term of service as identified by the "Package" that Customer subscribes to. For purposes of this Agreement, the "Effective Date" shall be the date on which Customer submits order for service.

2) Free trial accounts are subject to 15 days of client evaluation. VideoBookmark may terminate this free trial account at will with any specific reason.

Section 3. Encoding - Conversion of Customers Media. VideoBookmark, upon Customers request and subject to all payment requirements and any other conditions described herein, shall convert, through its own efforts and those of its subcontractors, Customers multimedia materials into a streaming video and/or audio format. Customer shall provide VideoBookmark with a copy of the materials to be converted in the format as specified on the Customers quote submitted to VideoBookmark. Customer should not provide VideoBookmark with the original of the materials to be converted and, in no instance, shall VideoBookmark be liable to Customer for direct damages for loss of, or other damage to, Customers materials greater than the cost of the medium on which the materials were transmitted to VideoBookmark. Customer shall retain all rights, including all trademark, licensing and copyright rights, in both the original multimedia materials as well as the streaming media materials.

Section 4. Streaming - Space Support and Maintenance. VideoBookmark agrees, subject to the terms of this Agreement, to allow Customer to use and occupy Customers Allotted Space on VideoBookmark’s servers. Subject to the terms of this Agreement, VideoBookmark agrees to provide Customer with those support services necessary to allow third persons to access and view Customers media on Customers Allotted Space as per the terms of this Agreement.

Section 5. Linking Services. VideoBookmark shall provide Customer with all necessary information to construct, and maintain, a hyperlink from Customers web site to Customers Allotted Space on VideoBookmark’s server. VideoBookmark shall use all reasonable commercial efforts to make Customers Allotted Space available for viewing by third parties 24 hours each day, seven days per week. Customer shall have the responsibility to notify VideoBookmark if Customers hyperlink to VideoBookmark’s service is inoperable.

Section 6. Price and Payment. Customer shall pay VideoBookmark monthly recurring fees, as indicated in "Quote email" which include charges for use and occupancy of Customers Allotted Space. In addition to any recurring fees, Customer may be charged non-recurring fees as indicated at this same web page address for setup of the Space. A deposit (equal to one month’s monthly charge) is due before service begins for Customers who elect to pay for their accounts on a monthly basis. Customers electing to pay semiannual or annually must submit payment before service begins. Amounts past due by 45 days are subject to VideoBookmarks standard late payment fee of 5% of the standard monthly rate for that package. Amounts past due by 60 days are subject to immediate closure. VideoBookmark reserves the right to increase prices upon the expiration of the Customers contracted term. This Agreement will automatically renew on a month-to-month basis at the month-to-month rate in effect at the time of the renewal unless canceled in writing or modified in writing by the Customer prior to the renewal date. Customer will receive an invoice for charges and payment is due upon receipt of invoice.

Section 7. Content of Customers Materials. VideoBookmark does not actively monitor the Customers material nor does VideoBookmark exercise any editorial control over the content of any material that the Customer uploads into VideoBookmark’s service. However, VideoBookmark reserves the right to remove any and/or all of the Customers material from VideoBookmarks service that are, in VideoBookmarks discretion, potentially illegal, a violation of Trademark and/or Copyright, or may subject VideoBookmark to liability, or violate the acceptable use policy stated below in this Agreement. Upon removal of the material, VideoBookmark shall notify Customer of the removal of the materials, as well as the reason for removal. In no instance shall VideoBookmark be liable for the removal of the materials.

Section 8. Acceptable Use. This Agreement is designed to help protect VideoBookmark’s customers and the Internet community from irresponsible or illegal activities. In the event that Customer violates this Agreement through improper use of the service, VideoBookmark reserves the right to terminate the service without notice. VideoBookmark shall make reasonable efforts to advise Customer of the inappropriate behavior and offer any corrective action necessary. VideoBookmark reserves the right to immediately terminate its service to Customer for any flagrant or repeat violations of this Agreement. Incidents that may cause the account to be terminated include, but are not limited to:

a) Harassment: using the service to threaten or harass.
b) Using the service for any purpose other than which it is intended.
c) Attempting to impersonate any person, using forged headers or other identifying information in a defamatory way.
d) Violation of Trademarks and/or Copyrighted material. Upon receipt of a legal notice to "Cease" hosting of material, VideoBookmark will remove all related material until Customer has satisfactorily resolved the dispute.
e) Uploading any programs that may cause a disruption to the service.
f) Untimely payment of any and all amounts due.
g) Any action that violates the laws of applicable local, state, federal or international governmental bodies.

VideoBookmark will cooperate with any and all appropriate legal authorities in investigating claims of illegal activity, including, but not limited to illegal transfer or use of copyrighted material or other illegal activity. VideoBookmark reserves the right to monitor or view material uploaded by Customer onto VideoBookmark’s service at any time for the purpose of ensuring compliance with this Agreement.

Section 9. Live Events. Customer agrees not to use the service to host "live events" without the express written permission of VideoBookmark and, if such consent is given, only pursuant to the terms and conditions designated in the written permission from VideoBookmark. In the event that Customer uses the service to host "live events" without the express written consent of VideoBookmark, VideoBookmark reserves the right to remove Customers materials from VideoBookmarks service, or otherwise block access by third-parties to Customers materials.

Section 10. Disk and Bandwidth Utilization. By accepting this Agreement, Customer agrees to be bound by the service description applicable to its account. VideoBookmark reserves the right to remove material and/or terminate or suspend the account due to any violation of bandwidth or utilizations limits ("overage") that VideoBookmark deems inappropriate or excessive. VideoBookmark will make reasonable efforts to keep client informed of excessive bandwidth by email but can not guarantee such notification.

Section 11. Security of Data. VideoBookmark makes no guarantee and assumes no liability for the security of any data on any server including "secure servers." Customer agrees to maintain separate backups of any data other than the backup systems that VideoBookmark has in place and VideoBookmark shall not be liable for the loss, or modification, of any Customer materials due to any breach of security.

Section 12. RealNetworks. Customer purchasing accounts that use RealNetworks’ Streams are using Streams subject to the RealNetworks Licensing Agreement and agree to be bound by RealNetworks Stream License Agreement. VideoBookmark shall not be liable for any violation of the RealNetworks Stream Licensing Agreement by Customer and Customer shall indemnify VideoBookmark, including all attorneys fees and other costs, if VideoBookmark shall be held liable for Customers violation of the Licensing Agreement by any court of competent jurisdiction.

Section 12-B. Windows Media. Customer purchasing accounts that use Windows Media are using Streams subject to Microsoft's Licensing Agreement and agree to be bound by Microsoft's Stream License Agreement. VideoBookmark shall not be liable for any violation of the Microsoft Windows Media Stream Licensing Agreement by Customer and Customer shall indemnify VideoBookmark, including all attorneys fees and other costs, if VideoBookmark shall be held liable for Customers violation of the Licensing Agreement by any court of competent jurisdiction.

Section 13. QuickTime. Customer purchasing accounts that use QuickTime Streams are using Streams subject to Entera, Inc., and agree to be bound by Entera's Stream License Agreement as well as any QuickTime Stream License Agreements that may preceed Entera's License Agreement. VideoBookmark shall not be liable for any violation of the Entera's Stream Licensing Agreement by Customer and Customer shall indemnify VideoBookmark, including all attorneys fees and other costs, if VideoBookmark shall be held liable for Customers violation of the Licensing Agreement by any court of competent jurisdiction.

Section 14. Continuity of Service. VideoBookmark makes every effort to keep its service up and running. However, VideoBookmark can not and will not guarantee 100% uptime of its service. In no event shall VideoBookmark be liable for any disruption of service of a duration of less than four hours. VideoBookmark will reimburse customer, on a daily pro-rated basis upon request, any fees paid to VideoBookmark for which service was unavailable for a duration of four hours or more in any given day.

Section 15. Modification of Media. In the event Customer wishes to modify, or otherwise change, the media on their Allotted Space, Customer shall have the privilege of doing so as long as compliance with the Terms and Conditions of this Agreement are met. Customers wishing to modify their allotted package disk space and/or data-traffic should submit a request for modification to salesrep@VideoBookmark.com.

Section 16. Cancellation of Service by VideoBookmark. VideoBookmark reserves the right to cancel the Customers account should the Customer fail to adhere to the terms of this Agreement. Should cancellation of the account occur, VideoBookmark will reimburse client any unused fees (prorated daily), after VideoBookmark has determined, in its own discretion, that all charges associated with the account have been satisfactorily paid. Upon request of Customer, VideoBookmark shall return all Customer materials. VideoBookmark.com reserves the right to offer service only to those clients who do not use "excessive" bandwidth. The definition of "excessive" shall be at the sole discretion of VideoBookmark.com Current clients using excessive bandwidth may, with notice, have their hosting packages upgraded to a higher level. VideoBookmark.com also reserves the right to terminate, under some circumstances and with notice, the accounts of clients with excessive bandwidth usage. VideoBookmark reserves the right to withhold fees, up to the total of any charges associated with the account that have not been satisfactorily paid, if legal action is pending against VideoBookmark for the misuse of the account or if VideoBookmark reasonably believes legal action may be brought against VideoBookmark. Under such conditions, VideoBookmark may withhold such fees until it has been determined that any legal action brought against VideoBookmark has been satisfactorily resolved and all charges have been satisfactorily paid.

Section 17. Cancellation of Service by Customer. Customer shall have the right to terminate this Agreement upon thirty (30) days written notice to VideoBookmark. VideoBookmark shall reimburse client any unused fees (prorated daily), after VideoBookmark has determined, in its own discretion, that all charges associated with the account have been satisfactorily paid. Customers who have subscribed to an Annual or Semi-Annual Subscription Package, and who seek to cancel their subscription prior to the expiration of their term, shall have their account recalculated based upon the month-to-month rate and any remaining unused fees will be reimbursed to Customer. VideoBookmark will not be responsible for storage and preservation of Customers materials upon receipt of request for cancellation. VideoBookmark reserves the right to withhold fees, up to the total of any charges associated with the account that have not been satisfactorily paid, if legal action is pending against VideoBookmark for the misuse of the account or if VideoBookmark reasonably believes legal action may be brought against VideoBookmark. Under such conditions, VideoBookmark may withhold such fees until it has been determined that any legal action brought against VideoBookmark has been satisfactorily resolved and all charges have been satisfactorily paid.

Section 18. No Other Warranties. VIDEOBOOKMARK WARRANTS THAT THE SERVICE WILL OPERATE SUBSTANTIALLY IN CONFORMANCE WITH THE SPECIFICATIONS DEPICTED IN THEIR PACKAGE. TO THE EXTENT PERMITTED BY LAW, VIDEOBOOKMARK DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. THE DURATION OF ANY STATUTORILY-REQUIRED WARRANTY PERIOD SHALL BE LIMITED TO THE TERM OF THE LIMITED WARRANTY.

Section 19. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL BE LIABLE TO CUSTOMER FOR DIRECT DAMAGES GREATER THAN THE TOTAL OF ONE MONTH’S FEE CHARGED BY VIDEOBOOKMARK FOR THE USE AND OCCUPANCY OF CUSTOMER’S SPACE OR IN THE CASE OF SPECIAL SERVICES, INCLUDING ENCODING SERVICES, THE SUM TOTAL OF PAYMENTS MADE BY CUSTOMER TO VIDEOBOOKMARK FOR THE SERVICE FOR WHICH DAMAGES ARE CLAIMED. IN NO EVENT SHALL VIDEOBOOKMARK BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF AND IN RELATION TO THIS AGREEMENT EVEN IF ADVISED BEFORE HAND OF THE POSSIBILITY OF SUCH LIABILITY. UNDER NO CIRCUMSTANCES WILL VIDEOBOOKMARK BE LIABLE TO CUSTOMER FOR ANY MARKETING, ADVERTISING, PROMOTIONAL EXPENSES OR ANY EXPENSES RELATED TO THE CUSTOMER’S USE OF VIDEOBOOKMARK ’S SERVICE, REGARDLESS OF ANY EVENT, INCLUDING INTERRUPTION OF VIDEOBOOKMARK ’S SERVICE, OR VIDEOBOOKMARK ’S REMOVAL OF CUSTOMER’S MATERIAL.

Section 20. Taxes. In the event that they are applicable, Customer shall be solely responsible for the payment of all sales, use and similar taxes relating to their use of VideoBookmarks services.

Section 21. Governing Law. The validity, construction and performance of this Agreement shall be governed by the laws of the State of California.

Section 22. Arbitration. The parties agree to submit any dispute arising out of or in connection with this Agreement to binding arbitration in California before an arbitrator agreed to by both parties and subject to the rules of the American Arbitration Association. The parties agree that such arbitration will be in lieu of either party’s rights to assert any claim, demand or suit in any court action, (provided that either party may elect either binding arbitration or a court action with respect to obtaining injunctive relief to terminate the violation by the other party of such party’s proprietary rights, including, without limitation any trade secrets, copyrights or trademarks). Any arbitration shall be final and binding and the parties agree not to contest the enforceability of the arbitrator’s order.

Section 23. Assignment. Customer may not assign its rights or obligations arising under this Agreement without VideoBookmarks prior written consent. VideoBookmark may assign its rights and obligations under this Agreement with prior written notice to Customer.

Section 24. General Provisions. BOTH PARTIES REPRESENT AND WARRANT THAT THEY HAVE FULL POWER (INCLUDING CORPORATE POWER) AND AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT AND TO PERFORM THEIR OBLIGATIONS HEREUNDER, AND THAT THE PERSON (AND COMPANY, IF APPLICABLE) WHO ACCEPTS THIS AGREEMENT BY REPLY EMAIL IS DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE PARTY.

Section 25. Amendment of Agreement. VideoBookmark may amend this Agreement from time to time on an as-needed basis by placing an update of this Agreement on-line at VideoBookmarks web site at this location or at any other location designated at said site. Any changes to this Agreement take effect upon the renewal date of the Agreement. Therefore, it is Customers responsibility to monitor this Agreement on-line. If Customer does not agree with the terms and conditions of VideoBookmark, Customer must immediately cease the use of VideoBookmarks service.

Section 26. Copyright. The entire content of VideoBookmarks Service is copyrighted, and all rights are reserved.

Section 27. Any personal or business information you, the client, give to VideoBookmark.com is used by us for the sole purpose of transacting business with VideoBookmark.com. Information including, but not limited to, name, address, phone number, e-mail, and credit card information will not be sold or distributed to any outside parties without your prior authorization. Unless otherwise notified, VideoBookmark.com may use links to our existing clients' web sites for purposes of demonstrating our services to prospective clients.