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Terms of Service

Last updated Nov 10, 2011

Orbius Terms of Service

This Terms of Service Agreement (the “Terms of Service” or “Agreement”) establishes the terms and conditions applicable to your (“You” or “Your”) use of the Orbius service (as defined below) offered by Beyond.com, Inc. (“Beyond” or ‘We’). By executing the Orbius License and Service Agreement or by using Orbius and/or any portion thereof, you accept and agree to be bound by these terms and conditions. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the terms "You" or "Your" shall refer to such entity.

These Terms of Service apply to your use of Orbius for creating a Personal Profile, creating and joining Communities on Orbius, and posting of Content on Orbius.

Definitions

“Community” refers to networks created on Orbius that allows Community Owners and its Members to organize and create content using the Orbius tools.

“Orbius®” is the platform and service used to create a Personal Profile, and create or join a Community. This is also referred to as the “Orbius Platform” or “Platform”.

“Beyond.com, Inc.” or “Beyond” is the company that owns and operates Orbius and the Orbius Platform.

“Community Owners” are users who have been licensed by Beyond to create Communities on Orbius.

“Community Members” or “Members” are end users who register on Orbius to create Personal Profiles, create Communities, join Communities, post Personal Data, create content on their Personal Profiles, Communities or Community Member Profile.

“Content” means any work of authorship including Personal Data, information provided to Orbius or Community Owners, comments, recommendations, discussion forums, photos, videos, audios, photos, text, files, listings, postings, messages, or other materials posted on or sent through Orbius.

“Community Content” is Content that has been posted within a Community and is under the control of the Community Owner and its members.

“Community Content Area” is the area in a Community in which Community Content may be posted.

“Community Member Content” is the Content posted by a Community Member or by other Community Members on the Member’s own Member Profile.

“Private Label Communities” means Communities for which Community Owners have entered into a separate Private Label Agreement with Beyond or through Orbius Authorized Resellers.

“Member Profile Content” means all content posted by a Community Member on his own Member Profile or content posted by other Community Members on the Member’s Profile.

“Community Owner Controlled Advertisement” is an advertisement that has been placed in the Community by the Owner of the Community.

“Orbius Controlled Advertisement” is an advertisement that has been placed in an area that is controlled by Orbius, but excluding the Community Content Area.

“Orbius Controlled Advertisement Area” is the Community Content Area on which Beyond may place an Orbius Controlled Advertisement. An Orbius Controlled Advertising Area may become a Community Content Area under separate agreement with Beyond.

“Orbius Areas” means all areas on Orbius other than the Community Content Area.

“User” or Users” means anyone or anything that interacts with Orbius or its licensed digital resources, or puts its resources into service, in any manner, for any purpose.

Ownership of Content

Each Member owns all their respective Personal Profile Content.

You, as Community Owner, own the Community Content of Communities that they created or have been assigned to have rights of an Owner of the Community. You agree that Community Members may edit or delete their own Community Member Content.

For the Content that you own, you may edit or delete the Content. You may download the Content with the means provided on Orbius. You agree not to attempt to acquire any information by any other means not provided by Orbius including the use of a screen scraping tool or online “robot” without prior written consent from Beyond.

If you want to move your Content out of Orbius by any other means, Orbius will provide reasonable services to enable you to do so. Such services will be performed and billed at the then-published Orbius Professional Services Rate. If the Community Content you want to move includes Community Member Profile Content, you agree that you will notify Community Members of your intent to move their Content and to give them a minimum of 15 calendar days notice prior to doing so, by posting a message on the Home Page of your Community as well as to send a broadcast message to all members of your Community(s). You agree that Community Members shall be given the time and option to delete their Community Member Profile Content, if they choose to do so.

You acknowledge and agree that you have sole responsibility for ensuring that all Content submitted on or through Orbius by your Community Members, is compliant with the terms and conditions of this Agreement. You shall actively monitor the activity of Your Community Members through the Administration Service for compliance with all other Terms of Use Agreements, disclaimers and notices that may be displayed by Orbius or transmitted through Orbius and all Laws (“Applicable Terms”), in order to ensure that no activity (Yours or a Member’s) is in violation of any Applicable Terms. You, and not Beyond, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all User Content, and Beyond shall not be held responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any User Content. Beyond reserves the rights to, without notice, withhold, remove and/or discard User Content not in compliance with the Applicable Terms, and to remove or disable the account of any of your Users not in compliance with the Applicable Terms.

License to Content

License from You

By uploading Content onto Orbius, you hereby grant Beyond and all other Orbius Users, a non-exclusive license to reproduce, create derivative works of, distribute, publicly perform and publicly display such Content on the condition that the Content is attributed in a manner specified by its author, if at all.

You also hereby grant to Beyond a worldwide, perpetual, royalty-free license to (i) reproduce, store, display, create derivative works of, distribute, perform and publicly display User Content on or through Orbius, and, if additionally affirmatively elected and authorized by You, on an opt-in basis, using the Administration Service Configuration Settings, on or through other outlets and media including similar services operated by Beyond; (ii) to use and analyze the User Content by Beyond for internal business purposes; and (iii) disclose metrics regarding User Content on an aggregated basis for marketing and business development purposes.

License to use Orbius

During the term of these Terms of Service, Beyond grants you a limited, revocable license to use the underlying Orbius Software Platform to enable as required for your use, to create, configure and support the building of Communities on the Orbius Platform, subject to the terms and conditions of these Terms.

Advertising Revenue

Beyond shall have the right to display Orbius Controlled Advertisements for all complimentary Communities in the designated Orbius Controlled Advertisement Areas and shall be the sole beneficiary of any revenues derived there these areas.

Intellectual Property

Beyond and its licensors, partners, or affiliates, where applicable, shall own all right, title, and interest, including, without limitation, all Intellectual Property Rights in and to the Orbius Technology offering, and the Content in the Orbius Controlled Areas. This Agreement is not a sale and does not convey to you any rights of ownership in or related to Orbius, the Orbius Technology or the Intellectual Property Rights owned by Beyond. The Orbius name, the Orbius logo, and the product names associated with the Service are trademarks of Beyond, and no right or license is granted to use them.

Your Comments and Suggestions

You hereby assign and agree to assign to Beyond, all rights, title and interest in and to any enhancement requests or suggestions, comments, evaluations, ideas relating to the Orbius Platform or the use of Orbius provided by you to Beyond (“User Feedback”), including but not limited to all Intellectual Property Rights embodied in such User Feedback.

Notice and Procedure in case of Claims of Copyright Infringement

Beyond respects all Intellectual Property Rights. However, Beyond does not independently, and has no responsibility to, confirm that all Content posted on Orbius is provided by a valid holder of the rights. In the event that Beyond becomes aware that Content posted on or through Orbius has been provided by a person who is not a valid holder of the rights, Orbius may, if it deems appropriate at its sole discretion, remove or disable the publication of such Content.

If you believe that your work has been copied or published in a way that constitutes Copyright Infringement, please provide Beyond with the following information:

a) description of the Content that comprise the copyrighted work or intellectual property that is claimed to be infringed;

b) description of the location where the Content you claim is infringed on Orbius;

c) signed and notarized statement by you that you have a good faith belief that the disputed use is not authorized by the copyright, its agent or the law;

d) signed and notarized statement by you, made under penalty of perjury, that the above information in such Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

e) if you are not the owner, a signed and notarized statement by the owner of the copyright or intellectual property interest that you are authorized to act on their behalf.

By submitting a claim, you also agree that in the event that your claim is determined to be false, you may be liable for all costs associated with handling of your Claim.

All Notice of claims of copyright and other intellectual property infringement should be sent to:

Beyond.com, Inc.

1060 First Avenue, Suite 100

King of Prussia, PA 19406

Attention: Copyright Claim

Proprietary Rights

Code and Content

You agree that all the intellectual property on the Orbius Platform, other than the Content you provide, is owned by Beyond or the applicable User(s). Except as expressly permitted under these Terms, you agree not to:

1. Modify, distribute, or create derivative works on the Orbius Platform.

2. Run, rent, lease, loan, or sell access to the Orbius Platform.

3. Decompile, reverse engineer, or copy the Orbius Platform or any Community.

4. Reproduce or distribute any Private Content or Private Code outside the applicable Community.

Trademarks

Beyond.com, Inc., Orbius, and other related graphics, our logo and sub-logos, Orbius marks, and trade names used on Orbius are the trademarks of Beyond and may not be used without permission. Other trademarks and trade names that may appear on Orbius are the property of their respective owners.

Accounts, Passwords, and Security

You must be a registered User to create a Community on the Orbius Platform. Communities and Community Creators, in turn, determine whether Users need to be registered to contribute Content in that Community. That is up to the discretion of the Community Owner(s). As a User, you are responsible for keeping your password secure. Names of Communities and Platform IDs are non-transferable. You will be solely responsible and liable for any activity that occurs under your own personal ID.

Content Code of Conduct and Interaction

You agree to comply with the license and restrictions applicable to each item of Code or Content you post, copy, access, or use.

Content from other Users or advertisers is made available to you through Communities and the Orbius Platform. Because Beyond does not control such Content, you agree that Beyond is not responsible for any such Content, including advertising and information about third party products or services.

Your interactions with other Users on the Orbius Platform, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the User. Like with any web-based interaction, we suggest that you use caution and good judgment.

You agree that Beyond is not responsible for any loss or damage incurred as the result of any such dealings or with respect to any other User's use or disclosure of your Personal Data (as defined in the Privacy Policy). If there is a dispute between you and any third party (including any User), Beyond is under no obligation to become involved.

You release Beyond, its officers, employees, agents and successors from claims, demands and damages of every kind or nature arising out of or related to: (i) any disputes with other Users, and/or (ii) the Orbius Platform.

If you are a California resident, you agree to waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to 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.”

Acceptable Use and Conduct

You agree that you and your Members shall comply with the following member Code of Conduct:

Member Content Code of Conduct

Orbius is a social media platform that enables companies, brands, associations, groups and individuals to connect with word of mouth techniques. We want your Community to be a place where people respect the rights and feelings of others, including third party intellectual property rights. Therefore, you agree to the following rules for using Orbius-based Communities and for posting messages, photos, video and other content ("Content") on Orbius, and you agree that all Members of your Community shall be subject to the following:

WHEN MEMBERS USE ORBIUS, THEY ARE AGREEING TO ABIDE BY THE MEMBER CODE OF CONDUCT AND THE OTHER RULES SET FORTH IN THESE TERMS OF SERVICE. FAILURE TO ADHERE TO THESE TERMS OF SERVICE MAY RESULT, AMONG OTHER THINGS, IN TERMINATION OF THE COMMUNITY OR AN INDIVIDUAL ACCOUNT AND THE DELETION OF CONTENT THAT HAS BEEN POSTED, WITH OR WITHOUT NOTICE, AS DETERMINED BY THE COMMUNITY OWNER OR BEYOND, IN ITS SOLE DISCRETION.

Third-Party Content

Members may link to, upload and share User Generated Content with other Members and associates, such as photographs and videos from computers, cameras, webcams, mobile phones or other means. Members may post and share original photographs and video that are of a personal nature that: (i) are of themselves, (ii) are taken by them, or (iii) are original art or animation created by the Member. Members may not post third-party copyrighted content, such as the latest episode of a popular TV show or a favorite music video. Members are expected to use good judgment and respect the copyrights and other intellectual property rights of others. Members are specifically prohibited from:

  • uploading or sharing any photographs, videos or other Content other than original works that are created by other than that Member
  • posting or sharing any Content that infringes upon or violates the copyright, trademarks or other rights of any third party
  • attempting to circumvent any content filtering techniques we may employ.

Inappropriate Content

Members may not post or share Content that:

  • is obscene, pornographic or sexually explicit
  • depicts graphic or gratuitous violence
  • makes threats of any kind or that intimidates, harasses, or bullies anyone
  • is derogatory, demeaning, malicious, defamatory, abusive, offensive or hateful

As a Community Owner, you agree to undertake the responsibility to monitor for such content and to take appropriate action.

Beyond reserves the right to suspend, and eventually terminate, your use of the Platform without notice if it has any reasonable cause that you have posted or failed to monitor your Community for Inappropriate Content.

Unlawful or Harmful Content or Conduct

As a Community Owner or Member, you agree that you will not:

  • violate any local, state, national or international law or post any Content that would encourage or provide instructions for a criminal offense
  • impersonate any person or entity or otherwise misrepresent yourself, your age or your affiliation with any person or entity
  • use Community to send or make available any unsolicited or unauthorized advertising, solicitations, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation
  • post or share any personally identifiable or private information of any third party
  • solicit passwords or personal information from anyone, including those under age 18
  • use information or content you obtained on any Orbius Community website in any manner not authorized by the Orbius Code of Conduct or Terms of Service
  • post any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment
  • register for more than one account or use or attempt to use another's account, service or system without authorization or create a false identity on the Service or the Site
  • engage in any predatory or stalking conduct

Your Account

Term

These Terms of Service commence upon your acceptance of these Terms and continues as indicated on the corresponding License and Service Agreement, or until terminated below. These Terms of Service will automatically terminate if Beyond discontinues the Orbius Platform. Beyond may terminate your Community if you are in material breach of your obligations hereunder and such breach is not cured within 5 days notice of such breach, or in the event that your Community has become dormant for a period of 6 months or longer, in its sole discretion.

Deactivating Your Account

You may deactivate your Orbius account at any time, for any reason, by following the instructions on Orbius.

Orbius has the right (at its sole discretion) to delete or deactivate your account, block your email or IP address, or otherwise terminate your access to or use of the Orbius Platform or any Community, or remove and discard any Content within any Network, without notice and for any reason.

Effects of Deactivating an Account

Upon deactivating your account, these Terms of Service shall terminate and your access rights to the Orbius Platform will immediately cease to exist. Even if Content is deleted from Orbius's active servers, it may remain in our archives. Orbius will have no obligation to refund any prepaid fees for premium services.

Survival

The provisions under the following headings will survive termination of these Terms for any reason: License from You (under heading “Licenses to Content”), Content and Interaction, Acceptable Use and Conduct, Privacy and Spam, Disclaimer of Warranties, Indemnity, and Limitation of Liability.

Changes to Orbius

Beyond reserves the right at any time (and from time to time) to modify, suspend, or discontinue providing the Orbius Platform or any part thereof with or without notice. Orbius will not be liable to you or to any third party for any modification, suspension or discontinuance of the Orbius Platform.

Disclaimer of Warranties

YOUR USE OF ORBIUS, AND ALL CODE AND CONTENT, ARE AT YOUR SOLE RESPONSIBILITY AND RISK. ORBIUS AND ALL CODE AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BEYOND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. BEYOND MAKES NO WARRANTY THAT ORBIUS, OR ANY OF ITS CODE OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.

Indemnity

You agree to indemnify, defend, and hold harmless Beyond, and its subsidiaries, affiliates, officers, agents, corporate sponsored community owners and sponsors or other partners, and employees, from and against any claim, demand, loss, damage, cost, or liability (including reasonable attorneys' fees) arising out of or relating to

1. any Code or Content you submit, post, transmit, or make available through Orbius;

2. your use or misuse of Orbius;

3. your connection to Orbius;

4. your violation of these Terms; or

5. your violation of any rights (including intellectual property rights) of a third party.

Limitation of Liability

YOU AGREE THAT BEYOND SHALL NOT BE LIABLE TO YOU FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF BEYOND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM (i) THE USE OR THE INABILITY TO USE ORBIUS OR ANY CODE OR CONTENT, (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSION OF DATA; AND (iii) STATEMENTS OR CONDUCT OF ANY THIRD PARTY (INCLUDING ANOTHER USER) ON ORBIUS OR ANY CODE OR CONTENT; OR (B) FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS.

Updates to Terms of Service

These Terms may be updated or changed by Beyond from time to time upon Beyond posting amended Terms of Service on this site. If you do not agree to changes to the Terms of Service, you must notify Orbius in order to terminate your account.

In addition to these Terms of Service, you will comply with all policies applicable to Beyond and Orbius, which policies are (i) either posted on Orbius or provided to you and (ii) incorporated by reference into these Terms.

General

Beyond’s failure to exercise or enforce any right or provision of these Terms of Service does not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should try to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. Your Orbius account is non-transferable. You may not delegate your duties under these Terms of Service or assign these Terms of Service, in whole or in part.

Any unauthorized use of Orbius is a violation of these Terms and certain federal and state laws, including without limitation the Computer Fraud and Abuse Act (18 U.S.C. S 1030 et seq.), Section 502 of the California Penal Code and Section 17538.45 of the California Business and Professions Code. Such violations may subject the unauthorized user and his or her agents to civil and criminal penalties.

The other Members of Orbius are intended third party beneficiaries of your obligations under these Terms of Service.

Beyond may assign these Terms of Service to any successor or purchaser of Beyond.com, Inc. or of all or substantially all of its assets.

These Terms of Service shall be governed by the laws of the Commonwealth of Pennsylvania, as if entered into and to be wholly performed in Pennsylvania and without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. In any action brought hereunder, each party hereby consents to the jurisdiction of the Federal or state courts of the Commonwealth of Pennsylvania, and waives any jurisdictional, venue or inconvenient forum objections.

These Terms of Service, which incorporate the Orbius Content Code of Conduct, shall govern your use of the Orbius Platform, superseding any prior agreements (whether written or oral) between you and Beyond or Orbius regarding the subject matter hereof.


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