Terms & Conditions for the use of FORscene

These Terms and Conditions also apply to any Orders. Siteseer may change these Terms and Conditions from time to time. In such an event at least 30 days' notice will be given by Siteseer by the posting of any amended Terms and Conditions on the Siteseer Web Site. It is the responsibility of the Customer to regularly check for any such notification. Following such notification, if the Customer does not wish to accept such change, the Customer may cease to use the Services. In which case the Customer may not receive any refund of any kind for outstanding FORscene Credits or Services purchased prior to the amendments to these Terms and Conditions. Use of the Customer’s FORscene Credits or the Services after the amendments to these Terms and Conditions have been made will be deemed to constitute acceptance of the amendments.

1 Definitions

1.1 In these Conditions, the following expressions have the following meanings:

'Acceptable Use Policy'

means the Customer's obligations in relation to Content set out in clause 3

'Agreement'

means the agreement between Siteseer and the Customer for the provision of the Services of which these Terms and Conditions form part

'Billing Rates'

means the rate at which FORscene Credits are removed from the Customer’s FORscene Account when the Services are used

'Content'

means any video, visual image data, audio data or any other content that is either uploaded and/or edited on, and/or encoded on, and/or published on, and/or hosted by the Customer’s FORscene Account, excluding any video playback software or any other software provided by or on behalf of Siteseer'Customer'means the person(s), organisation, firm or company by whom, or on whose behalf, this Agreement is entered into, and to whom the Services are being provided

‘Siteseer’

SiteSeer Ltd (registered in England with no. 4739823) of 43 Clarence Road, Stony Stratford, Milton Keynes MK11 1JE

'Siteseer Web Site'

means the web site of Siteseer which is currently available at www.siteseer.co.uk or any successor website or website nominated by Siteseer

'Forbidden'

Forbidden Technologies plc (registered in England with no. 3507286) of 2-4 St George's Road, London SW19 4DP

'FORscene'

means the web based video editing and publishing tool developed by Forbidden

'FORscene Account'

means the account registered in the Customer’s name containing FORscene Credits that can be exchanged for Services

'FORscene Credits'

means the credits in the Customer’s FORscene Account in respect of payments made by the Customer to Siteseer by way of advance payment for the Services which can be exchanged for Services'Input Material'any video, visual image data, audio data or any other content that is uploaded to the Customer’s FORscene Account

'Live Event'

means an event which is to be distributed or broadcast whilst it is taking place

'Order'

means any instruction by the Customer to Siteseer to provide the Services (including opening a FORscene Account and adding FORscene Credits to an existing FORscene Account)

'Output Material'

means any data or other information provided by Siteseer to the Customer in connection with the Services and representing encoded Input Material edited by the Customer, excluding any video playback software or any other software provided by or on behalf of Siteseer

'Services'

means any and all services provided by Siteseer (or Siteseer’s suppliers) to the Customer in relation to FORscene including through the use by the Customer of the FORscene Account

'Simulated Live Event'

means an event which is to be distributed or broadcast insuch a way that it appears to be taking place at the time that it is viewed by a viewer

2 Siteseer 's obligations: the provision of the Services

2.1 The Services will be provided on a reasonable efforts basis in accordance with Siteseer’s technical specifications as from time to time published by it and as may be otherwise agreed by the Customer and Siteseer in writing. Siteseer is entitled to suspend the provision of the Services at any time and without liability to the Customer for operational reasons and to update or maintain the Services.

2.2 Siteseer reserves the right to refuse to accept an Order for the Services for any reason and without explanation.

2.3 Siteseer reserves the right to cease to provide the Services for any reason and without any liability to the Customer. In which case Siteseer may close the Customer’s FORscene Account, delete all Content relating to the Customer and cancel the Customer’s FORscene Credits without refund.

3 Customer's obligations: Use of the Services and Acceptable Use Policy

3.1 The Customer represents, warrants and undertakes that it has the power and authority to enter into this Agreement and that in using the Services it will comply with this Agreement and any applicable law.

3.2 The Customer acknowledges and agrees that it is solely responsible in all respects for the Content that is either uploaded to, and/or edited on, and/or published on, and/or hosted by the Customer’s FORscene Account, or is in any way associated with any other Services provided by Siteseer (or Siteseer’s suppliers) to the Customer. The Customer hereby undertakes that the Content will not violate any applicable law and that it shall at all times comply with the Acceptable Use Policy.

3.3 The Customer shall at its own expense retain duplicate copies of all Input Material and insure against its accidental loss or damage. Siteseer shall have no liability for any such loss or damage, however caused.

3.4 The Customer shall not in any way utilise their FORscene Account (or allow anybody else to utilise their FORscene Account): to store, display, transmit (including any re-transmission), communicate to the public, sell, promote, advertise or distribute any material or information which is unacceptable as set out in 3.6. Without prejudice to any other rights and remedies of Siteseer and without any liability to the Customer, Siteseer may remove any of the Customer’s material from FORscene that in Siteseer’s sole opinion is unacceptable as set out in 3.6. In which case Siteseer may also close the Customer’s FORscene Account without any liability and cancel, without refund, the Customer’s FORscene Credits.

3.5 The Customer undertakes not to show or make available or permit to be shown or made available any video, or other material, that has been, or is being, uploaded to, edited on, encoded by, published on or hosted by FORscene on a web site (or on a web site that links to a web site) that is used: to store, display, transmit (including any re-transmission), communicate to the public, sell, promote, advertise or distribute any material or information which is unacceptable as set out in 3.6.

3.6 Unacceptable material or information includes (but is not limited by) that which: 3.6.1 is (or is likely to) infringe (or could encourage, assist or enable the infringement of) any third party's intellectual property rights; or

3.6.2 is (or is likely to be), in Siteseer's sole opinion: false, misleading, fraudulent, obscene, indecent, defamatory, offensive, discriminatory, abusive, blasphemous, inciting religious hatred, malicious, depicts or describes nudity or any sexual activities or practices, or is in any other way in bad taste or in bad faith; or

3.6.3 is (or is likely to be) in breach of any local, national or international criminal or civil laws or otherwise in violation of any law in any relevant jurisdiction.

3.7 The Customer shall not re-sell the FORscene Credits in their FORscene Account without the prior express written permission from Siteseer.

3.8 The Customer shall not conduct (or allow anybody else to conduct) a Live Event or a Simulated Live Event through their use of the Services without the prior written approval from Siteseer.

3.9 The Customer will not use FORscene for "Spamming", or the sending of unsolicited e-mail, or the use of an email address or domain that is maintained by Siteseer (or Siteseer’s suppliers) as a reference: in such circumstances and without prejudice to its other rights and remedies Siteseer is entitled to immediately terminate the Services. The same applies to inappropriate or bulk Newsgroup postings. If the Customer’s use of the Services results in any of Siteseer’s IP addresses (or those of Siteseer’s suppliers) being reported to any organisation that attempts to police and/or monitor abuse of the Internet, such as an organisation that maintains a list used by third parties for blocking spam, then without prejudice to Siteseer's other rights and remedies this will also be grounds for termination of Services. Siteseer’s Services may not be used as the source, intermediary or destination for spam, flames or mail bombs of any kind. Siteseer reserve the right to charge a £20 penalty per unsolicited e-mail sent or inappropriate Newsgroup posting made. In addition, all costs associated with investigating "Spam" complaints will be charged to the violating Customer. These remedies are without prejudice to Siteseer's other rights and remedies.

4 Rights in Input Material and Output Material: Indemnity

4.1 The copyright or other intellectual property rights in any Input Material belong to the Customer, unless otherwise agreed in writing by Siteseer and the Customer. The copyright or other intellectual property rights in the Output Material belong to the Customer, subject to the provisions of paragraphs 4.3 and 4.5 below.

4.2 The Customer represents, warrants and undertakes that: 4.2.1 all Input Material uploaded to the Customer’s FORscene Account, any Output Materials and any other Content will not infringe or breach the copyright or other rights of any third party or any legal or regulatory requirement or law relating to the Content and

4.2.2 It will not abuse or misuse Siteseer's systems and Services (including without limitation by attempting to hack into Siteseer's systems or by including or introducing viruses or other harmful code) and it will comply with Siteseer's instructions, requirements and policies from time to time relating to the use of the Services and/or security matters and the Customer shall indemnify Siteseer its directors officers agents affiliates and suppliers against any loss, damages, costs, expenses or claims arising from any such infringement, any breach of this clause 4.2 or any breach of the Acceptable Use Policy.

4.2.3 The Services are provided using Siteseer's know-how, and technology and other intellectual property rights used under licence to Siteseer. Accordingly, the Customer shall not: 4.3.1 reverse compile or disassemble the object code version of any software (including without limitation java code or script) supplied by Siteseer in connection with the Services ("Software") nor attempt to do any of the foregoing nor adapt or modify the whole or any part of the Software (save only that the aforegoing cannot be precluded by section 296A Copyright, Designs and Patents Act 1988); and

4.2.4 remove or alter any acknowledgement of Forbidden's video compression intellectual property rights in any of the Output Materials, including any acknowledgement of intellectual property rights used under licence to Forbidden.4.5 The Customer shall not remove or alter any acknowledgement of SiteSeer's Service unless otherwise agreed by the Customer and SiteSeer.

4.4 The Customer shall not remove or alter any acknowledgement of Siteseer's Services unless otherwise agreed by the Customer and Siteseer in writing.

4.5 Where Siteseer provides any Software to the Customer, this Software remains the intellectual property of Siteseer or its suppliers, and the Customer will only be entitled to use the Software to the extent permitted in any software licence the Customer may separately enter into with Siteseer.

5 Charges & Refund Policy

5.1 The Customer shall pay the charges agreed with Siteseer for the provision of Services referred to on the Siteseer Website at the time the relevant Services are provided, at Siteseer's then current charges (if different or if the charges are not listed on the Siteseer Website), as otherwise provided in this clause 5 or as otherwise agreed with the Customer in writing.

5.2 The Customer shall open a FORscene Account for the purposes of being provided with and paying for the Services.

5.3 The Customer agrees that FORscene Credits will be automatically removed from their FORscene Account when they use the Services. FORscene Credits are valid for a minimum period of three months from the time of purchase. It is assumed that FORscene Credits purchased first will be used up first.

5.4 The FORscene Credits will be removed at the Billing Rates specified on the Siteseer Web Site and which are current at the time when the Customer uses the FORscene Services.

5.5 Siteseer shall be entitled to change the Billing Rates. In such an event, reasonable notification will be given by Siteseer by the posting of any amended Billing Rates on the Siteseer Web Site. It is the responsibility of the Customer to regularly check for any such notification. Following such notification, if the Customer does not wish to accept such a change, the Customer may cease to use Siteseer’s FORscene Services and close their FORscene Account. In which case the Customer may not receive any refund of any kind for outstanding FORscene credits or Services purchased prior to the changes being made. Use by the Customer of their FORscene Credits after the changes to the Billing Rates have been made will be deemed to constitute acceptance of the changes.

5.6 Unless otherwise expressly agreed in writing between Siteseer and the Customer, Siteseer may refuse to provide the Services or discontinue them if doing so would result in a negative balance of FORscene Credits in the Customer’s FORscene Account or if the Customer is overdue in paying any sums due to Siteseer.

5.7 Siteseer shall not be obliged to refund any FORscene Credits to the Customer unless otherwise agreed by both parties in writing.

5.8 All charges are exclusive of VAT, which the Customer agrees to pay in addition.

6 Confidentiality: Data Protection

6.1 By submitting an Order for Services the Customer provides Siteseer with certain personal information or data. It is the responsibility of the Customer to ensure that the personal data provided to Siteseer is correct and up to date.

6.2 The Customer consents to Siteseer collecting, transmitting and storing such information about the Customer as is required for the purpose of administering their account. The Customer’s personal information will not ordinarily be made available to any third parties. However, Siteseer may provide the Customer’s personal data to governmental or law enforcement agencies and other third parties which in Siteseer's opinion have a legitimate reason for requesting the information.

6.3 If the Customer breaches this Agreement, uploads or creates unacceptable material (as referred to in 3.6) in connection with the Services, or jeopardises or compromises the integrity of the Services, Siteseer may take whatever steps it considers appropriate, to investigate and resolve any such matter. Without limitation, the Customer authorises Siteseer to use the Customer's personal data and other information relating to the use of the Services in connection with any such investigation, including by disclosing it to any third party which in Siteseer's opinion has a legitimate interest in any such investigation or outcome.

6.4 The Customer may be subject to a standard credit check. The information that the Customer provides may be disclosed to a licensed credit reference agency which will retain a record of the search, and the Customer authorises Siteseer to make such disclosures.

7 Term & Termination

7.1 If the Customer does not use any of their FORscene Credits for a continuous period of 3 months then Siteseer may deem that the Customer’s FORscene Account is dormant. In such an event Siteseer may close the Customer’s FORscene Account and cancel any remaining FORscene Credits without refund.

7.2 The Customer may close their FORscene Account by making a request to Siteseer in writing. Siteseer will ensure that the Customer’s FORscene Account is closed within a reasonable period of time after receiving the written request.

7.3 Notwithstanding the provisions of clauses 7.1 and 7.2 either party shall be entitled forthwith to terminate this Agreement by written notice to the other if :- 7.3.1 that other party commits any breach of any of the provisions of the Agreement and, in the case of a breach capable of remedy, fails to remedy the same within thirty days after receipt of a written notice giving particulars of the breach requiring to be remedied; or

7.3.2 an encumbrancer takes possession or a receiver or administrator is appointed over any of the property or assets of that other party; that other party makes any voluntary arrangement with its creditors or becomes subject to an administration order; that other party goes into liquidation or becomes bankrupt; the other party ceases or threatens to cease to carry on business or anything analogous to the foregoing under the law of any applicable jurisdiction occurs in relation to that other party.

7.3.3 Upon termination of this Agreement for whatever reason, Siteseer may delete all Content relating to the Customer without any liability whatsoever.

7.3.4 Termination of this Agreement shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision on or after such termination.

7.3.5 Upon termination of this Agreement for whatever reason all due or outstanding charges, fees and expenses owed by the Customer to Siteseer shall forthwith become due and payable.

7.4 Subject to the other provisions of this Agreement, Siteseer will host the Output Material for an initial period of twelve months. Any additional period of hosting will be by mutual written agreement and will require the payment of additional charges.

8 Warranties & Liability

8.1 Siteseer warrants to the Customer that the Services will be provided using reasonable care and skill on a reasonable efforts basis and, as far as reasonably possible, in accordance with the technical specifications as from time to time published by it. Any implied warranties, terms and conditions are hereby excluded to the fullest extent permitted by law.

8.2 Siteseer gives no warranty that the Services shall be uninterrupted or error-free. For the avoidance of doubt, any standards relating to the reliability of the Services that are agreed between the Customer and Siteseer are targets. While Siteseer shall use reasonable endeavours to achieve the targets, any failure by Siteseer to achieve the targets shall not constitute a breach of contract. Siteseer shall have no liability for any loss whatsoever, suffered by the Customer, in the event that the Services are interrupted, are not error free or if Siteseer fails to achieve any specified targets.

8.3 EXCEPT IN RESPECT OF DEATH OR PERSONAL INJURY CAUSED BY SITESEER'S NEGLIGENCE: SITESEER SHALL NOT BE LIABLE TO THE CUSTOMER BY REASON OF ANY REPRESENTATION (UNLESS FRAUDULENT), OR ANY IMPLIED WARRANTY, CONDITION OR OTHER TERM, OR ANY DUTY AT COMMON LAW, OR UNDER THE EXPRESS TERMS OF THIS AGREEMENT, FOR ANY LOSS OF PROFIT, REVENUE, GOODWILL OR BUSINESS, OR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS, DAMAGE, COSTS, EXPENSES OR OTHER CLAIMS (WHETHER CAUSED BY THE NEGLIGENCE OF SITESEER, ITS SERVANTS OR AGENTS OR OTHERWISE) WHICH ARISE OUT OF OR IN CONNECTION WITH THE PROVISION OF THE SERVICES OR THEIR USE BY THE CUSTOMER, AND THE ENTIRE LIABILITY OF SITESEER UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL IN ANY EVENT NOT EXCEED IN AGGREGATE THE AMOUNT OF SITESEER'S CHARGES TO THE CUSTOMER FOR THE PROVISION OF THE SERVICES.

8.4 Siteseer shall not be liable to the Customer by reason of any delay in performing, or any failure to perform, the Services, if the delay or failure was due to any cause beyond Siteseer's reasonable control.

9 General

9.1 These Conditions constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.

9.2 In the event of there being a conflict between the terms of these Conditions and the terms of the Order, the Order shall take precedence.

9.3 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

9.4 If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.

9.5 The Customer shall not be entitled to sell, lease, sub-licence, assign or transfer this Agreement nor all or any of its rights and obligations hereunder without the prior written consent of Siteseer.

9.6 Siteseer reserves the right to assign or sub-contract any or all of its rights and obligations under this Agreement without the Customer's consent.

9.7 The provision of the Services by Siteseer does not express any implied approval by Siteseer of any video material uploaded, edited and published using FORscene by the Customer.

9.8 The Agreement does not and is not intended to create any right or benefit enforceable by any person not a party to it (within the meaning of the Contracts (Rights of Third Parties) Act 1999) except that a person who, under Clauses 9.4 and 9.5 above, is a permitted

10 Governing Law & Jurisdiction

10.1 English law shall apply to this Agreement for the provision of the Services, and the parties agree to submit to the non-exclusive jurisdiction of the English courts.

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