Terms of Service

Please read this BEAT THE CROWD Terms of Service Agreement (this “Agreement”) carefully. This Agreement is a contract that governs your use of the software and services (the “Services”) that are available on the srmedia.com/BeatTheCrowd web site (the “Site”). By using the Site or the Services you agree to be legally bound by all of the terms and conditions in this Agreement. If you don’t comply with this Agreement, you may be banned from the Service and the Site, at the operator’s discretion.

A. Operator. The Site, the Services and all related computer software and databases, are operated by SRmedia Digital Publishing LLC, a New York limited liability company (“SRmedia”) and its authorized service providers. You can contact SRmedia by e-mail at: BeatTheCrowd@srmedia.com.

B. The Services. The Services provide an opportunity to follow the 2010 “©Acadamy Awards®” nominees, predict the “©Oscar®” winners and share the experience with other participants. SRmedia reserves the right to add, remove and change features and capabilities of the Services at any time, with or without notice, in its sole discretion.

C. Availability of the Services. The Services will generally be available through the Site 24 hours a day, 7 days a week leading up to, and for some limited time after, the “©Acadamy Awards®” telecast on March 7, 2010, except as necessary for upgrades, backup, repairs and other maintenance. SRmedia will use reasonable efforts to minimize such disruptions of the Services, and to provide as much advance notice as possible (on the Site), subject to the warranty disclaimers and limitations of liability set forth in Paragraph G below.

D. Use of the Services. The Services are to be used only in accordance with instructions provided on the Site and as expressly permitted by this Agreement, and for no other purpose whatsoever. Without limiting the foregoing, you agree not to post any comments or materials, or use the Services in any other way, that is defamatory, or an invasion or violation of anyone's privacy or publicity rights, or that constitutes “hate speech” directed to any person or group; that is obscene or constitutes child pornography; that infringes or violates any person or entity's copyright, trademark or other intellectual property rights; or that is unlawful or illegal in any way. Any resale or re-licensing of, or offer to resell or re-license, the Services, or use of the Services in connection with any business, service or web site (including, without limitation, by “deep linking”, “meta linking”, “stripping” or “framing”) that competes with the business and services of SRmedia, or for the purpose of promoting or advertising any business, product, service or web site, whether directly or indirectly, is strictly prohibited. You agree to exercise civility and respect in any communications or materials that you post or send through any means that might be made available on the Site or otherwise as part of the Services (“Your Posts”). Any inappropriate posts may be removed from the Site at the operator’s discretion.

E. Use of Your Posts. You agree that SRmedia may freely use, print, store, copy, modify, share, display, distribute, license, exhibit and publish Your Posts, on a worldwide basis, including on the Site, on other web sites and in any other medium or format, in connection with operation, maintenance, development, promotion, advertising and marketing of the Services; provided, however that SRmedia shall have no obligation to use any of Your Posts for any purpose.

F. Registration and Fees. You must register on the Site (“Registration”), by creating a user name and password for yourself, providing a valid e-mail address and accepting this Agreement, in order to use the Services. In addition, use of certain optional Services require you to pay fees by providing payment information. Specific information about fees and payment terms is set forth on the Site. You must be fourteen years of age or older to use the Services or register on the Site. You also agree to pay any use, sales or other taxes that may be due in connection with your use of the Services. When you provide payment account information to SRmedia to pay fees, you represent that you are an owner or authorized user of the payment account. Unless and until you cancel your Registration (according to instructions posted on the Site), each time fees are due, you agree and reaffirm that SRmedia is authorized to charge your payment account for the applicable fees. You agree to promptly notify SRmedia of any changes to your payment account number, its expiration date and/or your billing address, as applicable, and you agree to promptly notify SRmedia if your payment account expires or is canceled for any reason.

G. Warranty Disclaimers and Limitations of Liability. THE SERVICES, THE SITE AND ALL RELATED WEB SITES, SOFTWARE, DATABASES, PRODUCTS AND SERVICES ARE PROVIDED "AS IS", WITH NO WARRANTIES OF ANY KIND WHATSOEVER TO YOU OR ANY THIRD PARTY. ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, ARE HEREBY EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING DISCLAIMER, SRMEDIA DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL PROVIDE ANY CERTAIN FEATURES OR CAPABILITIES, WILL CONTINUE TO BE AVAILABLE, OR WILL OPERATE ON ANY CERTAIN COMPUTER HARDWARE OR SOFTWARE ENVIRONMENT, WITHOUT INTERRUPTION, AT ANY MINIMUM SPEED, LEVEL OF PERFORMANCE, RELIABILITY, AVAILABILITY OR SECURITY, OR WITHOUT DEFECTS OR ERRORS.

YOUR SOLE REMEDY AND SRMEDIA'S SOLE LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY DISPUTE, CLAIM OR DAMAGES OF ANY KIND OR NATURE IN RELATION TO THE SERVICES OR OTHERWISE, IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, SHALL BE LIMITED TO A PRORATED REFUND OF ANY UNUSED FEES THAT YOU PAID TO SRMEDIA, UPON YOUR WRITTEN REQUEST RECEIVED BY SRMEDIA WITHIN THIRTY (30) DAYS AFTER ANY SUCH DISPUTE, CLAIM OR DAMAGES FIRST AROSE.

EXCEPT AS EXPRESSLY PROVIDED IN THE PRECEDING PARAGRAPH, TO THE FULLEST EXTENT ALLOWED BY LAW, SRMEDIA SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF EARNINGS, OR LOSS OF BUSINESS OPPORTUNITY RESULTING FROM OR RELATED TO THE USE OR PROVISION OF THE SERVICES, THE SITE AND ANY RELATED WEB SITES, SOFTWARE, DATABASES, PRODUCTS AND SERVICES, EVEN IF SRMEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. HOWEVER, SOME STATES AND OTHER JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT BE ENTIRELY APPLICABLE TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS AND REMEDIES THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.

TO THE KNOWLEDGE AND BELIEF OF SRMEDIA, THE SERVICES ARE NOT A SWEEPSTAKES, CONTEST OR LOTTERY, AS SUCH TERMS MAY BE DEFINED UNDER APPLICABLE LAW. THE SERVICES MAY NOT BE USED IN ANY STATE OR OTHER JURISDICTION IN WHICH OFFERING OR USING THE SERVICES WOULD CONSTITUTE A VIOLATION OF THE LAWS OF SUCH STATE OR JURISDICTION.

H. Privacy. SRmedia values your privacy and will not use your e-mail address or any personal information that you provide for Registration or payment of fees, except as necessary to provide the Services in accordance with this Agreement, and will not sell or license any such information to any third party for advertising or any other purpose. By completing the Registration, you consent to receive e-mail messages from SRmedia in connection with the Services.

I. Intellectual Property Rights. Except as otherwise stated in this Paragraph I, all right, title and interest in and to the Services, the Site and all related web sites, software, databases, products and services, and all US and international copyrights, patent, trade secret and trademark rights therein (“SRmedia Intellectual Property”) is owned by SRmedia and its licensors. “OSCAR®,” “OSCARS®,” “ACADEMY AWARD®,” “ACADEMY AWARDS®,” “OSCAR NIGHT®,” “A.M.P.A.S.®” and the “Oscar” design mark are trademarks and service marks of the Academy of Motion Picture Arts and Sciences, and may be protected under US and international copyright laws (“AMPAS Intellectual Property”). To the knowledge and belief of SRmedia, any use of the AMPAS Intellectual Property on the Site is in full compliance with the owner’s legal regulations posted at: http://www.oscars.org/legal/regulations.html. The Services are neither endorsed by nor affiliated with the Academy of Motion Picture Arts and Sciences. This Agreement does not give you any right, title or interest in or to any AMPAS Intellectual Property or, except for the limited rights expressly granted in Paragraph D, above, to any SRmedia Intellectual Property.

J. Copyright Infringement Notification. If you believe that any material posted on the Site by another participant or by SRmedia infringes your copyright in the material, you may file a copyright infringement notification by e-mail to SRmedia’s designated agent at: BeatTheCrowd@srmedia.com, including substantially the following (please consult your legal counsel or see Section 512(c)(3) of the Digital Millennium Copyright Act to confirm these requirements):

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

2. Identification of the copyrighted work claimed to have been infringed.

3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to enable SRmedia to locate the material on the Site.

4. Information reasonably sufficient to permit SRmedia to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

K. Indemnification. You agree to indemnify and hold SRmedia and its subsidiaries, affiliates, officers, managers, members, agents, co-branders and other partners, suppliers, contractors, licensors, licensees and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of any use by you of the Services or the Site in violation of this Agreement.

L. Amendments. SRmedia reserves the right to replace, update and modify this Agreement (“Amendments”), at any time and from time to time, in SRmedia's sole discretion, by posting each such Amendment on the Site. SRmedia will use reasonable efforts to give you notice of such Amendments and/or update the “revision date” at the top of the amended page(s). Except as provided above, no Amendment of this Agreement shall be effective unless in writing and signed by SRmedia.

M. Severability. If any provision of this Agreement shall be found by a court of competent jurisdiction to be invalid, void, or for any reason unenforceable, that provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this Agreement shall remain in effect and enforceable.

N. Governing Law. The laws of the State of New York, excluding its conflicts rules, govern this Agreement, your use of the Services and the Site and your Registration and payment of any fees. You expressly agree that the state and federal courts located in New York State shall have exclusive jurisdiction for any action, claim or dispute with SRmedia or relating in any way to this Agreement, and you expressly consent to the exercise of personal jurisdiction by such courts in connection with any such action, claim or dispute.

Oscar® is a registered trademark of the Academy of Motion Picture Arts and Sciences