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DIGITAL MEDIA STORE – TERMS AND CONDITIONS OF USE

Dated as of September 23, 2008

PLEASE READ THESE TERMS AND CONDITIONS OF USE (THE “TERMS OF USE”) CAREFULLY BEFORE ACCESSING OR USING ANY ASPECT OF THIS SERVICE.

This digital media store, currently available at http://videostore.rr.com (the “Service”), is managed and published by iN DEMAND L.L.C. (“iN DEMAND”), acting as an agent of and on behalf of Time Warner Cable Inc. and its affiliated or related entities (collectively, “Time Warner Cable”). iN DEMAND and Time Warner Cable are individually and collectively referred to herein as “Provider” or “we” or “us.” These Terms of Use are a legal contract between you, a Service user, visitor, and/or customer, and Provider, and govern, in general, your use of the Service. By accessing, registering for, downloading content or entering into other types of transactions, and/or using any part of the Service, you agree to be bound by these Terms of Use. If you do not agree to these Terms of Use, please do not access or use any part of this Service. Provider maintains the right to change these Terms of Use at any time without notice in its discretion. By continuing to maintain your account and access and use the Service after Provider has posted any such modifications, you agree to be bound by the Terms of Use as modified. Please review these Terms of Use regularly so that you are aware of any such modifications. If any modification is not acceptable to you, you must cease all access to and use of Service and cancel your account. The Digital Media Store Privacy Policy, found at http://videostore.rr.com/privacypolicy, and the Digital Media Player End User License Agreement, found at http://videostore.rr.com/licenseagreement, are incorporated into these Terms of Use by reference.

DIGITAL CONTENT AND USAGE RULES

The Service enables you to access, use, view and/or listen to movies, television programs, video, images, graphics, illustrations, other visuals, software, music and other audio (whether on the Service, or via streaming or downloading), and read certain product descriptions and other text, and otherwise have access to material, content, code and data in digital form solely for your Non-Commercial, Private Use, as defined below (“Content”). Content may be owned by iN DEMAND, by Time Warner Cable or by third parties, or by their parents, subsidiaries, affiliates, licensors and business partners (“Content Owners”). However, in all circumstances, you understand and acknowledge that your rights with respect to the Content via the Service will be limited by these Terms of Use, by applicable law (including, without limitation, domestic and international copyright law), and by applicable Usage Rules, which are defined below.

The Service offers Content to view, download, access on-demand or rent, in various forms, including, for example, full-length television programs and movies, and short previews of the same. Regardless of your downloading or viewing method, title choice, or the Content’s length or form, your use of the Content may be governed by additional licensing and usage rules established by Provider and/or the pertinent Content Owner, which rules may permit, limit, or prohibit usage of the Content, including without limitation, your access, viewing period, right to copy to one or more portable devices, right to “burn” to portable media, the type of devices on which the Content may or may not be displayed, and additional rights and limitations associated with each digital title that govern that particular title’s use, download, grant of on-demand access, or rental (all such rules and rights, collectively, “Usage Rules”). In the case of an individual title, the Usage Rules may be described or presented to you more specifically where the title is located on the Service or when it is licensed, rented or otherwise accessed. Such Usage Rules may vary by title, even if provided by the same Content Owner, and it is therefore important that you read and understand each set of Usage Rules as they apply to each title that you download, rent or otherwise view or access. If there is a conflict between these Terms of Use and the applicable Usage Rules, the Usage Rules shall govern.

By using the Service, you agree to abide by and honor any and all Usage Rules, as well as the terms and conditions set forth herein. Provider and/or the Content Owners of the digital titles (or any other Content on the Service) may, from time to time, remove such titles or Content from the Service without notice, subject to the terms set forth in these Terms of Use, the Usage Rules, and any additional terms that may be disclosed at the time of such download.

USE OF THE SERVICE

You agree that you are using the Service and Content for your own personal, entertainment and non-commercial use, and not for transfer, assignment, resale, sale, lease, sublicense, rental, promotion, advertisement, redistribution or any other commercial use of any kind. Other than as expressly permitted herein, or by any applicable Usage Rules, you may not download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any Content or any part of the Service.

In addition, you agree that you will not: (i) interfere or attempt to interfere with the proper functionality of the Service, including, for example and without limitation, by submitting viruses, forging TCP/IP packet or other header information, flooding, spamming, mail bombing, or attempting to overload or crash the Service, or by taking any action that may impose an unreasonable or disproportionately large load or burden on the infrastructure supporting the Service; (ii) attempt to decipher, decompile, decrypt, reverse engineer, or disassemble any of the software comprising, or any other part of, the Service or the Content; (iii) remove any proprietary notices or labels, or any promotional or advertising material, from the Content or Service, or otherwise use the Service or Content in violation of Provider’s, any other Content Owner’s or any other third party’s intellectual property or other proprietary or legal rights; (iv) insert your own or a third party’s advertising, branding or other promotional content into any of the Content, materials or other features of the Service; (v) impersonate any person or entity or misrepresent your affiliation with any other person or entity (including, without limitation, anyone from or associated with Provider or a Content Owner); (vi) make any copies or transfer the location of any Content you have licensed except as expressly permitted herein for copying or transferring between a limited number of non-portable to portable devices; (vii) frame, link to or embed any of the Content, materials or information available on or from the Service other than as expressly permitted by these Terms of Use; or (viii) use the Service or any Content in violation of any applicable law.

In order to protect the Service, the content we offer on the Service, our interests and the interests of our content providers, our digital media files are encoded with rights-management protections and technologies. You understand that the Service and Content may include security components that permit digital information to be protected and used only as permitted by the Usage Rules set by Provider and/or Content Owners including, without limitation, the right to delete or remove Content from any devices on which it may be displayed. Without limitation of anything else set forth in these Terms of Use or any applicable Usage Rules, you further agree not to modify, probe, scan, test, disable, circumvent, bypass or defeat (or to attempt to do any of the foregoing) in any way such security components or use any robot, spider, site search/retrieval application, “screen scraping,” “database scraping” or other manual or automatic device or process to retrieve, index, “data mine”, or in any way access or obtain data or Content not intended for you or for which you are not authorized to access.

Provider (either individually, as iN DEMAND or Time Warner Cable, and/or jointly, for themselves and/or for the Content Owners), reserve the right to enforce the provisions of these Terms of Use and/or the Usage Rules with or without notice to you. Provider may, in its sole discretion, either individually or jointly, terminate these Terms of Use or terminate or suspend your account at any time without notice to you in the event that you breach (or are reasonably suspected to have breached) any provision of these Terms of Use, any applicable Usage Rules or any applicable law, or if you engage in conduct which Provider determines in its sole discretion is not in the best interests of iN DEMAND, Time Warner Cable, any other Content Owners, or any other party. Provider maintains a policy that provides for the termination in appropriate circumstances of the Service privileges of users who are repeat infringers of intellectual property rights. If Provider terminates these Terms of Use, and/or terminates or suspends your account, neither Provider nor any other Content Owner shall have any liability or responsibility to you.

LICENSING, ACCESSING ON-DEMAND, OR RENTING CONTENT

General Digital License Terms

As stated above, whether you license, pay to access on-demand, or rent a title (collectively, to “Digitally License” or a “Digital License”) and/or simply view any Content, all such Digital Licenses are governed by these Terms of Use and the applicable Usage Rules. The Digital License fees and any other applicable charges, as well as any individual digital-title Usage Rules, will be made available where each digital title is located on the Service and/or before you complete the Digital License process. The Usage Rules also may set forth any rights you may or may not have to transfer or copy a Digitally Licensed title to portable media or devices, and further, the number of and which devices the Content Owner deems authorized for such use, copying or transfer.

Provider and/or the Content Owners of the digital titles (or any other Content on the Service) may, from time to time, remove such titles or Content from the Service without notice, including after a Digital License is granted, before a permanent download is complete, and/or during any rental or VOD period, subject to these Terms of Use, the Usage Rules, and any additional Digital License terms disclosed with each Digital License process.

Pricing also is subject to change without notice and all Digital License downloads, rentals or VOD transactions are considered final upon the granting of a Download License or Rental/VOD License, as applicable (each as defined below), subject to any Revocation Rights (as explained below). Neither Provider nor the Content Owners are responsible for typographical, software or other errors of any kind that may cause incorrect pricing to appear. Please refer to our Help or Customer Service sections in the event any such error may have occurred.

Downloading Digital Titles

Each time you wish to download and license a digital title, you must complete a Digital License process that includes the valid payment of the applicable license fee. Upon completion of this process, Provider will grant you a non-transferable, non-assignable, non-exclusive, revocable, limited license to retain a permanent copy of that digital title (“Download License”). Once you have been granted and accept this Download License and the terms associated therewith, you may download the digital title to your authorized device for permanent storage and use. Any further, permitted uses of that title, including transfer to an authorized portable device, will be permitted only as set forth expressly in these Terms of Use or the Usage Rules applicable to that title.

IMPORTANT: You understand and agree that your completion of the license process for a digital title or other Content on the Service does not grant you permanent access to your digital title unless and until you’ve successfully downloaded it to the authorized device. However, while completing the payment process makes the license of that title final, unless and until you successfully complete the download of your digital title to an authorized device, such digital title may be subject to disabled access and/or license revocation by Provider and/or the Content Owner (collectively, “Revocation Rights”). Nothing negates these Revocation Rights on the part of Provider and/or the Content Owners, including, without limitation, the interference with, failure or corruption of your computer, device, network, the Internet, the licensed Content and/or this Service, in whole or in part. Therefore, you should download the digital titles you paid for as soon as possible after the payment process is complete. You bear all risk and responsibility for the successful completion and/or failure to successfully complete the download process of each digital title for which you have been granted a Digital License. Please refer to our Help or Customer Service sections for further assistance for specific occurrences.

Rental and Video-On-Demand Licenses of Digital Titles

Each time you wish to rent a digital title or pay to access Content via video-on-demand (“VOD”), you must complete a Digital License process that includes the valid payment of the applicable rental or VOD fee. Upon completion of this process, Provider will grant you a non-transferable, non-assignable, non-exclusive, revocable, limited license of limited duration in that digital title (the “Rental/VOD License”). Any further, permitted uses of that title, including transfer to an authorized portable device for viewing during the Rental/VOD License period, will be permitted only as set forth expressly in the Usage Rules applicable to that title.

IMPORTANT: You understand and agree that for all rentals and VOD, you will be granted this limited Rental/VOD License only to have access to the digital title for a limited time period of thirty (30) days (or less) from the date you rented it or paid to access it via VOD (the “Viewing Period”). However, once you begin to play, start or otherwise view the downloaded and stored digital title, you will only have twenty-four (24) hours (unless otherwise expressly indicated prior to your payment) to complete your actual viewing of that title, regardless of the amount of time left in the Viewing Period. In other words, your limited Rental/VOD License to watch a digital title lasts only until the earlier of (i) the end of the Viewing Period, starting from the date of rental/VOD license, or (ii) 24 hours after you start watching that title after the Rental/VOD License has been granted (the “Rental/VOD Period”). There may be instances where a digital title will not be available for the full 30-day period. In such event, the period of time for which the title will be available will generally be disclosed to you where the applicable digital title is located or in the Usage Rules, and such shorter period of time will be deemed the Viewing Period for that digital title.

After the Rental/VOD Period ends, your Rental/VOD License expires, and we will delete the title and disable your ability to further use or view the title. Please refer to our Help or Customer Service sections for further assistance for specific occurrences.

REGISTRATION AND ACCOUNT DATA

In order to download, rent or access digital titles via VOD or, in some instances, view previews or samples, you must register with the Service first. To register, you must open a Service account by providing certain personal and other information, including, for example, your name, postal address in the United States, email address, age, a user name and password, and, in order to complete a license and download process, you must provide us with your valid credit or debit card information (all such information collectively, “Account Data”). You agree that you are solely responsible for providing us with accurate and up-to-date Account Data, including any changes to your address, email address, payment card numbers and/or expiration dates. You also agree that we may update your Account Data with information your bank or credit card issuer may supply to us from time to time.

You may only license Content via the Service if, and you hereby represent and warrant that, you are domiciled in the United States and you are 18 years old or older. You agree to pay in full the prices and any applicable taxes for any licenses you obtain either by credit or debit card or other permitted payment method. If payment is not received by us from your credit or debit card issuer, you agree to pay all amounts due upon demand by us. We reserve the right to restrict the use of debit cards for payment on the Service in our sole discretion. Except for certain payment card transaction fees for which Provider may be responsible to your payment card issuer directly, you are responsible for any fees or charges that your bank, credit card or debit card issuer may apply to the transactions you conduct on or through the Service.

You agree that you will not allow others to use your account or Account Data, and you are solely and entirely responsible for maintaining the confidentiality and security of both. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account or Account Data and you agree to immediately notify Provider of any actual or suspected unauthorized use of your account or any other breach of security. Provider shall not be responsible for any losses arising out of the unauthorized use of your account and/or Account Data, and you agree to indemnify, defend and hold harmless Provider, the Content Owners, and their business partners, subsidiaries, agents, affiliates and/or licensors, as applicable, and its and their respective directors, officers, employees and shareholders for any claims, damages, costs, expenses or liabilities (including reasonable attorneys’ fees), resulting from or arising out of any improper, unauthorized or illegal uses of the same.

In the unlikely event that we believe that the security of your Account Data or other personal information in our possession or control may have been compromised, we may seek to notify you of that development. If a notification is appropriate, we would endeavor to do so as promptly as possible under the circumstances, and, to the extent we have your e-mail address, we may notify you by e-mail. You consent to our use of e-mail as a means of such notification.

PRIVACY

For information regarding Provider’s use of Account Data and other information collected in connection with the Service, please refer to the Digital Media Store Privacy Policy, a copy of which is available at http://videostore.rr.com/privacypolicy and which is expressly incorporated into and made part of these Terms of Use. We may use or disclose information about you and your Service use in accordance with and as is permitted by http://videostore.rr.com/privacypolicy including, for example and without limitation, to protect our business interests, in cooperating with law-enforcement investigations, and in accordance with the Digital Media Player End User License Agreement and these Terms of Use. We may modify or update the Privacy Policy at any time, so please review it frequently. If we make certain material changes to the Privacy Policy, we will notify in accordance with its terms.

MATURE CONTENT

We make available entertainment and other materials on the Service directed to the general public, including that which may not be appropriate for younger viewers. We do not knowingly collect information from children under the age of 13, and require that anyone registering with the Service be 18 years of age or older. We also reserve the right to impose further restrictions on access to mature content, and Provider shall have no responsibility or liability therefore. Parents should restrict or supervise any use of their Service accounts by their children. Where reasonably available and administratively reasonable (or where required by law), we will provide parental guides such as explicit content advisories or the studios’ and television ratings.

Notwithstanding the foregoing, you may find Content on this Service you perceive to be offensive, indecent, or objectionable, which may or may not carry ratings, warnings or other identifying marks that such Content could be deemed as such, including the inclusion in such Content of explicit actions and language, adult-oriented material, and other, similar features. Regardless, as a user of this Service, you acknowledge and agree that Provider shall have no liability or responsibility to you or to any third party for any Content, or the failure to provide parental or other guidelines with respect to Content, of a mature or explicit nature, or which you might find objectionable, offensive, or indecent.

DIGITAL MEDIA PLAYER

In order to view Content licensed through this Service, you are required to download and install the Digital Media Player. Your use of the Digital Media Player is governed by the Digital Media Player End User License Agreement, currently available at http://videostore.rr.com/licenseagreement.

You are responsible for any hardware, systems, and/or software program(s) you use in connection with the Service, and any associated fees and expenses.

USE OF CONTENT ON THE SERVICE: COPYRIGHTS, TRADEMARKS AND RESTRICTIONS

The Service and the Content are owned or licensed by Provider, the Content Owners and other third parties. All rights not expressly granted to you in these Terms of Use are reserved to Provider, the Content Owners, and/or each of their business partners, parents, subsidiaries, affiliates, licensors or the party credited as the provider of such Content (collectively, “Provider Licensors”).

All Content on the Service is protected by copyright and/or other intellectual property rights that are owned and controlled by Provider or Provider Licensors. You agree that the Provider Licensors and each of their affiliates, third-party content providers and licensors are intended third-party beneficiaries under these Terms of Use with the right to enforce the provisions that directly concern their Content. The entire contents of the Service are also copyrighted as a collective work under the United States and other international copyright laws, and the selection, coordination, arrangement, organization, look and feel and enhancement of such content also are protected by copyright. You acknowledge and agree that you do not acquire any ownership rights by downloading, printing, accessing or otherwise using copyrighted material as permitted by these Terms of Use and the Usage Rules. Modification or use of the Content or Service for any purpose other than personal, noncommercial use is a violation of the respective owners’ copyrights and other proprietary rights. For example, the use of any such material on any other Web site or networked computer environment is strictly prohibited.

All trademarks, logos, service marks, and trade names (collectively, “Trademarks”) displayed on the Service or on Content available through the Service are registered and unregistered Trademarks of, and are proprietary to, Provider, Content Owners or Provider Licensors. Such Trademarks are protected by trade dress, trademark and other laws and may not be copied, imitated, reproduced, republished, uploaded, posted, transmitted, distributed or otherwise used, in whole or in part, in any way, unless authorized expressly and in writing by the Trademark owner.

DIGITAL MILLENNIUM COPYRIGHT ACT – INFRINGEMENT NOTIFICATION

If you believe that any Content made available on the Service in such a way that constitutes an infringement of your copyright, you should notify the Copyright Agent for the Service, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. 512(c)(2) (“DMCA”), promptly and in accordance with the procedures described below:

  1. 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 and description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
  3. Identification and description 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 permit the service provider to locate the material;
  4. Information reasonably sufficient to permit the service provider to contact the complaining party, including your 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; and,
  6. A statement, made under penalty of perjury, that the information in the notification is accurate and that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Such notification of claimed infringement should be sent to the Copyright Agent for the Service as follows:

Copyright Agent
Christine Dzujna
Time Warner Cable
290 Harbor Drive
Stamford, CT 06902
Phone: 1-203-328-0645 or 1-800-950-2266 ext. 645
Fax: 1-203-328-4840
E-mail: Christine.dzjuna@twcable.com

LINKS

The Service may contain links to other web sites and services (“Linked Sites”). The Linked Sites are for your convenience only, and you access and use them at your own risk. You acknowledge and agree that Provider is not responsible for, and does not endorse, the information, content, products, services, advertising, code or other materials of any Linked Sites, whether or not Provider is affiliated with the sponsors or operators of such sites or services. You should read and abide by all terms of use and privacy policies on any Linked Site you access.

Provider welcomes links to the Service, provided that the link does not state or imply any sponsorship or endorsement of your site or service by Provider. You are not permitted to link directly to any image hosted on the Service, such as using an “in-line” linking method to cause the image hosted by us to be displayed on another web site. You also may not frame, surround or obfuscate the Service or any Content thereon by any third party content, materials or branding. We may insist that any link to the Service or any Content thereon be discontinued, and we may revoke your right to link to the Service from any other web site at any time.

TERRITORIAL RESTRICTIONS

Currently, the Service is operated and controlled from our offices in the United States of America, and is intended only for residents of the United States of America, and in particular its 50 states and the District of Columbia (collectively, the “Territory”). The Service may not be available in the U.S. possessions, territories and military bases, including Puerto Rico, as these areas are not included in the initial launch of the Service. We do not represent that materials on the Service are appropriate or available for use in other locations outside the Territory. You understand and acknowledge that you may not access or attempt to access or use the Service from countries or locations outside of the Territory. You agree to abide by applicable export control laws as well as all other applicable laws in the Territory. Provider reserves the right to verify the location of users and may use IP addresses as a basis for determining the location of its users.

DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY

You expressly agree that your access to and use of the Service and any Content thereon is at your sole risk. Neither Provider, Content Owners nor Provider Licensors, nor their parents, subsidiaries, affiliates, employees, agents, or licensors make any warranty, express or implied, that the Service or Content will be uninterrupted, error-free or free from viruses or other harmful components, or that defects in the Service or Content will be corrected; nor do they make any warranty or representation as to the results that may be obtained or occur from use of the Service or Content, or as to the accuracy, reliability, timeliness, completeness, correctness, usefulness or content of any information, service, merchandise or Content provided through the Service.

The Service and Content are provided on an “as is” basis, without warranties of any kind, either express or implied, including (but not limited to) warranties of title, noninfringement, merchantability or fitness for a particular purpose, other than those warranties that are implied by and incapable of exclusion, restriction, or modification under the laws applicable to these Terms of Use. Provider further makes no warranty that the Service or the Content, or the functions or materials contained therein, will meet users’ requirements.

This disclaimer of liability applies to any damages or injury caused or alleged to be caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of record, whether for breach of contract, tortuous behavior, negligence, or under any other cause of action. You specifically acknowledge that Provider is not liable for the defamatory, offensive, or illegal conduct of other Service users or Content Owners and that the risk of injury from the foregoing rests entirely with you. Accordingly, you hereby fully release and discharge each of the Provider, Provider Licensors or any person or entity involved in creating, producing or distributing the Service and/or their respective parents, subsidiaries, affiliates, employees, agents, or licensors from and against any claims, damages, expenses and liability arising from or related to any injuries, damages or losses to any person (including, without limitation, death) or property of any kind resulting in whole or part, directly or indirectly, from your use of the Service.

IN NO EVENT WILL PROVIDER, PROVIDER LICENSORS OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICE OR THEIR RESPECTIVE PARENTS, SUBSIDIARIES, AFFILIATES, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES OR LIABILITIES, INCLUDING (WITHOUT LIMITATION) DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE OR CONTENT REGARDLESS OF THE CAUSE OR DURATION, INCLUDING WITHOUT LIMITATION FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR LACK OF TIMELINESS OR INAUTHENTICITY OF, THE INFORMATION CONTAINED WITHIN THE SERVICE, OR FOR ANY DELAY OR INTERRUPTION IN THE TRANSMISSION THEREOF TO THE USER, OR FOR ANY CLAIMS OR LOSSES ARISING THEREFROM OR OCCASIONED THEREBY. FOR THE AVOIDANCE OF DOUBT, YOU HEREBY ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT ON THE SERVICE AS WELL AS THE SERVICE ITSELF.

Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so some of the above limitations may not apply to certain users. In no event shall the protected entities be liable for or in connection with any Content posted, provided, transmitted, exchanged or received by or on behalf of any user or other person on or through the Service. Provider’s total liability for all losses, damages and causes of action, whether in contract, tort (including without limitation, negligence), or otherwise, arising from the Terms of Use or your use of the Service or Content, will not be greater than the amount paid by you to Provider to access, view, download or otherwise license this Service or any Content thereon during the six (6) month period preceding the date the claim first arose.

INDEMNIFICATION

You agree to indemnify, defend and hold harmless, Provider (including, for the avoidance of doubt, iN DEMAND and Time Warner Cable, individually and/or jointly), its subsidiaries and other affiliated companies, and its and their officers, directors, employees, agents, licensors, suppliers and any third party content and information providers from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, arising in any way from your use of the Service or Content, your placement or transmission of any message, content, information software or other materials through the Service, or your breach or violation of applicable law, the Terms of Use or the applicable Usage Rules. Provider reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, and in such case, you agree to cooperate with Provider in the defense of any such claim.

GENERAL CONTRACT TERMS

These Terms of Use and the Usage Rules constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. These Terms of Use and the Usage Rules shall be construed in accordance with the laws of the State of New York without regard to its conflict of laws rules, and shall be resolved individually, without resort to any form of class action. The parties agree to submit to the jurisdiction of the state and Federal courts, as applicable, located in New York County, New York. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of the Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms of Use remain in full force and effect.

ELECTRONIC COMMUNICATIONS; NOTICE

When you visit and use the Service or send e-mails or other messages to Provider, you are communicating with us electronically, and you consent to receive communications from us electronically. We will endeavor to communicate with you by e-mail or by posting notices on the Service. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.