THIS IS A FAIRLY LENGTHY DOCUMENT, AND IT CONTAINS MANY IMPORTANT PROVISIONS THAT AFFECT YOUR RIGHTS AND OBLIGATIONS. BY CHECKING THE CORRECT BOX AT THE END OF THE SIGN UP FORM (THIS “AGREEMENT”) , YOU HEREBY AGREE TO BE BOUND BY THIS AGREEMENT.

This Agreement governs your use of the Abracadaban.com website, including, without limitation, the uploading and use(s) of Flash and Gif banners (“Works”) onto or from the Abracadaban.com website, and any and all services offered by Abracadaban.com website (“Website”).

 

1. Description of the Website

The Website provides, an online marketplace for uploading, customizing and using (publishing) Works. Furthermore, the Website is divided into two sections: a public section and a private section. The public section offers to all visitors, among other things, general information about the Website, the ability to view and customize Works on the Website, a search engine to search for Works on the Website and a process by which visitors can register to become Members (“Members”), as further described below. The private section is only accessible by Members. The private section offers to Members (in addition to all services available in the public section) the ability to upload and use (publish) Works onto and from the Website in accordance with an applicable Content Upload Agreement, and the ability to access their accounts on the Website (“Membership Accounts”).

When a visitor to the Website registers to become a Member, he or she will select an available user name (“Membership Name”) and a corresponding user password (“Membership Password”) to create a unique, personal Membership Account. During registration, each Member shall be given the opportunity to select a default country (and also currency designations pre-determined by Abracadaban to correspond to such country). Once such information is entered during registration, such information cannot be revised later.

A Member shall upload a Work through his or her Membership Account, and such Work shall be subject to an applicable Content Upload Agreement. The Member shall also enter keywords and a description of the Work so that the Work can be categorized and be searched by the Website"s search engine. Abracadaban may also, in its sole discretion, place certain types of limits on the uploading of Works.

A Member shall customize and use a Work through his or her Membership Account, and such Work shall be subject to an applicable Content Use Agreement.

 

2. General Acknowledgements and Agreements

Your use of the Website constitutes your acknowledgement and acceptance of the terms and conditions of this Agreement, and you shall be bound by such terms and conditions. If you do not agree to be bound by the terms and conditions of this Agreement, do not use or access any portions of the Website or use any services offered on the Website.

Abracadaban shall have the right, in its sole discretion, to amend the terms and conditions of this Agreement, in whole or in part, at any time, and any such changes shall be effective immediately upon member notification and publication of such changes on the Website. Your continued use of the Website after the effectiveness of such changes and notice constitutes your acknowledgement and acceptance of the terms and conditions of this Agreement, as so amended. If you do not agree to be bound by the terms and conditions of this Agreement as so amended, do not use or access the Website.

If at any time the terms and conditions of this Agreement are no longer acceptable to you, whether or not as a result of an amendment by Abracadaban, do not use the Website.

Services on the Website are available only to, and may only be used by individuals who can enter into legally binding contracts under applicable law. Without limitation to the foregoing, services on the Website are not available to minors (e.g., persons under the age of eighteen) except under the supervision of an adult parent or guardian, and such parent or guardian shall be responsible for all uses of the Website. Your Membership Account on the Website may not be sold or otherwise transferred to another person or entity. If your use of the Website is on behalf of an entity, you represent and warrant that you have the authority to bind such entity to this Agreement.

 

3. Use of Works

You may only upload, customize or use Works to or from the Website in accordance with the terms and conditions of this Agreement and of an applicable Content Upload Agreement or Content Use Agreement. You may not use, reproduce, distribute, display or create derivative works based on any Works that appear on the Website unless you enter into a Content Use Agreement, and you may do so only to the extent expressly permitted under the terms and conditions of an applicable Content Use Agreement.

You acknowledge and agree that no ownership of any Works can be transferred, and that no sale of any Works can be effectuated, on or through the Website. Only the rights expressly sublicensed in an applicable Content Use Agreement are granted on or through the Website. You acknowledge and agree that Abracadaban or its licensors retain all ownership rights in and to the Works, and that such Works are covered and protected by copyright, trademark and other intellectual property rights of Abracadaban or its licensors.

 

4. Restrictions

You agree that you shall not use the Website in any manner that is not permitted by this Agreement or that violates any law, regulation or statute in an applicable jurisdiction.

You shall not upload or post onto the Website, or use the Website to transfer, any Work or other material or content that is covered or protected by copyright, trademark or other intellectual property rights unless you own or control such rights or have received all necessary consents. Abracadaban does not permit copyright infringing activities and infringement of intellectual property rights on its website, and Abracadaban will remove all Works if properly notified that such Work infringes on another's intellectual property rights. Abracadaban reserves the right to remove Works without prior notice. Abracadaban will terminate a user's access to its Website if the user is determined to be a repeat infringer. A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had a user submission removed from the Website more than twice.

You shall not upload or post onto the Website, or use the Website to transfer, any Work or other material or content that is libelous or slanderous or otherwise defamatory, obscene or indecent.

You shall not upload or post onto the Website, or use the Website to transfer, any Work or other material or content that contains or constitutes viruses, worms, Trojan horses or other code with malicious, disruptive and/or destructive features. You shall not to attempt to gain unauthorized access to any hardware or software systems or networks associated with the Website, or obtain any services or information not intentionally made available to you by Abracadaban on or through the Website. You shall not attempt to gain unauthorized access to the Membership Account of any other person or entity, or otherwise interfere with any other person's or entity's use, of the Website. You shall not use any false or misleading information (e.g., false or misleading names, email addresses or URLs) when using the Website, including, without limitation, with respect to the origin or source of any Work or other material or content that you upload or any identifying information for your Membership Account.

Abracadaban reserves the right to decide whether any Work is appropriate and complies with this Agreement for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material. Abracadaban may remove any such Work and/or terminate a user's access for uploading such material in violation of this Agreement at any time, without prior notice and at its sole discretion.

 

5. Management and Operation of the Website

You acknowledge and agree that Abracadaban has no obligation to review any Works or other material or content uploaded or posted onto the Website, and shall have no responsibility for any such Works or other material or content. Abracadaban shall have the right, in its sole discretion, to accept or deny, delete, move or edit any Works or other material or content uploaded or posted onto the Website. If you upload or post any Works or other material or content onto the Website, or any Works or other material or content is uploaded or posted onto the Website using your Membership Name or otherwise through your Membership Account, you remain solely responsible for such Works or other material or content.

You acknowledge and agree that Abracadaban shall have no responsibility for any material or content on other websites to which you may hyperlink or otherwise access from the Website, including any web log or comments to any web log on the Website. You acknowledge and agree that Abracadaban shall have no responsibility for any material or content on websites from which you may be hyperlinked or otherwise be directed to the Website.

Abracadaban reserves the right, in its sole discretion, to change or discontinue any or all of the services on the Website at any time. You acknowledge and agree that Abracadaban has no obligation to make, or continue to make, the Website or any particular portion or related service available to you (whether or not such unavailability is voluntary on the part of Abracadaban). Abracadaban reserves the right, in its sole discretion, to suspend or terminate your Membership Account at any time, including, without limitation, your Membership Name and Membership Password.

You acknowledge and agree that Abracadaban may store personal and certain other information about you on your computer in the form of “cookies”. Such use of cookies is solely in connection with the operation of the Website. You acknowledge and agree that if you prohibit or restrict the placement of cookies on your computer, such prohibition or restriction may have an adverse effect on your use of the Website. You acknowledge and agree that Abracadaban may also store personal information about you on its computers within or outside the U.S. By using this Website you acknowledge and agree that Abracadaban may, in its sole discretion, preserve or disclose your personal information if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: comply with legal process; enforce this Agreement; respond to claims that any Work violates the rights of third-parties; or to protect the rights, property, or personal safety of Abracadaban, its users or the general public.

 

6. Credits and Payments

Transactions on the Website, including use of Works and the remuneration to an uploading Member in the event his or her Work is purchased, shall be conducted using Website credits (“Credits”) in accordance with Abracadaban's Standard pricing and payment policies and subject to any amounts that may be owed to Abracadaban with respect to such transactions. In the event you are purchasing a Work, the appropriate amount of Credits shall be deducted from your Membership Account. In the event a Member purchases a Work that you have uploaded, the appropriate amount of Credits will be deposited into your Membership Account after Abracadaban has received from the purchasing Member non-opposable proof of payment.

 

7. Membership Account

You acknowledge and agree that you are to keep confidential the Membership Name and Membership Account provided by Abracadaban to you, and the Membership Password selected by you and approved by Abracadaban for use with such Membership Name and Membership Account. Your Membership Name, Membership Account and Membership Password are personal to you and may not be shared with, or transferred to, any other person or entity.

You acknowledge and agree that you will be solely responsible for each and every use of your Membership Account, Membership Name and Corresponding Password, and that Abracadaban may rely on the use of your Membership Account, Membership Name or Membership Password as conclusive evidence that you have used the Website.

 

8. Representations and Warranties

In addition to the representations and warranties you have made above, each of Abracadaban and you hereby represent and warrant that it, or he or she, has the right to enter into this Agreement.

 

9. Indemnification

You agree to indemnify, defend and hold harmless Abracadaban and its affiliates, and their respective officers, directors, employees, owners, agents, representatives, licensors and (sub)licensees (collectively, “Indemnitees”) from and against all claims, expenses (including attorney fees) or other liability arising from your breach of any of your representations, warranties or obligations under this Agreement, and from any and all uses by you of the Website (including any uses under your Membership Account or Membership Name, whether or not authorized by you), including, without limitation, any claims or actions based on infringement or violation of intellectual property rights, libel or slander or other defamation, right of privacy or “false light”, right of publicity or blurring or distortion or alteration of any Work or other material or content whether or not intentional. Abracadaban shall have the right, in its sole discretion, to control the defense of any claim, action or matter subject to indemnification by you with counsel of its own choosing. You shall fully cooperate with Abracadaban in the defense of any such claim, action or matter.

 

10. Limitations and Disclaimer

You agree that neither Abracadaban nor its affiliates, nor any of their respective officers, directors, employees, owners, agents, representatives, licensors and (sub)licensees (other than yourself, as applicable), shall be liable for any damages, whether direct, incidental, indirect or consequential, arising from any use by you of the Website, even if such parties have been advised, or advised of the possibility, of such damages.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FOR CLARIFICATION PURPOSES, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, ABRACADABAN MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE WWW.ABRACADABAN.COM WEBSITE OR THE SERVICES ON THE WWW.ABRACADABAN.COM WEBSITE, OR ANY WORKS OR OTHER MATERIALS OR CONTENT AVAILABLE ON THE WWW.ABRACADABAN.COM WEBSITE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, NON-INFRINGEMENT OF COPYRIGHT, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS, OR FREEDOM OF ANY SERVICES, OR ANY WORKS OR OTHER MATERIALS OR CONTENT, FROM VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE WITH MALICIOUS, DISRUPTIVE AND/OR DESTRUCTIVE FEATURES.

Abracadaban shall have no responsibility for any Works or other material or content uploaded or posted onto the Website, including, without limitation any material or content uploaded or posted by any Member onto the Website in any forum or as any comment to a web log.

 

11. Term and Termination

This Agreement shall continue in perpetuity unless terminated in accordance with this Section 12. Abracadaban at any time may terminate this Agreement in its sole discretion, including, without limitation, for breach by you of any of your representations, warranties or obligations under this Agreement, or for inactivity by you with respect to use of the Website. You may at any time terminate this Agreement by logging into your Membership Account on the Website and then sending a termination request to Abracadaban. In the event termination is by Abracadaban, Abracadaban shall notify you of such termination. Abracadaban reserves the right, in its sole discretion, to terminate your Membership Account at any time, including, without limitation, deactivating your Membership Name and Membership Password.

 

12. Effect of Termination

Upon any termination of this Agreement:

(a) your Membership Account shall be cancelled and closed and your Membership Name and Membership Password shall be deactivated;

(b) all Works uploaded by you shall be removed from the Website; provided, however, that Abracadaban users who have purchased your Works may continue to use the Work for their personal use;

(c) any and all Credits shall be redeemable by you for cash, minus any transactional expense in accordance with Abracadaban's Standard pricing and payment policies.

Termination of this Agreement shall not relieve you from any payment obligations that may have arisen prior to such termination, or any other obligations pursuant to any other agreement that has not been specifically terminated, such as a Content Upload Agreement or Content Use Agreement. The provisions of Sections 7, 9, 10, 12 and 14 shall survive the termination of this Agreement.

 

13. Suspension

Abracadaban reserves the right, in its sole discretion, to suspend your Membership Account at any time and for any length of time. In the event, and for so long as, Abracadaban suspends your Membership Account, you shall have no ability to upload or use any Works on the Website. For clarification purposes, Abracadaban shall not remove any Works you have uploaded prior to suspension of your Membership Account and such Works shall continue to be available for purchas.

 

14. Miscellaneous

This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to any conflict of laws principles. Any legal action, suit or proceeding arising out of or relating to this Agreement shall be instituted in a court of competent subject matter jurisdiction in the federal or state courts of the State of New York, and you and Abracadaban each submit to the personal jurisdiction of such court and waive any right each might otherwise have to claim lack of personal jurisdiction or inconvenience of forum.

The relationship between Abracadaban and you under this Agreement is that of independent contractors. For clarification purposes, the parties are not joint venturers, partners, principal and agent, or employer and employee. Neither party shall have the power to bind or obligate the other in any manner. You agree that you shall be responsible for all use, sales, value-added and similar taxes and duties imposed by any governing authority in any jurisdiction in connection with your use of the Website.

No waiver on the part of Abracadaban to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of Abracadaban to exercise any such power, right, privilege or remedy, shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. Abracadaban shall have the right, in its sole discretion, to assign any or all of its rights or obligations under this Agreement. You shall have no right to assign any of your rights or obligations under this Agreement.

This Agreement shall be inure to the benefit of, and be binding upon, Abracadaban and you, and its and your respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer upon any person or entity, other than Abracadaban and you, and its and your respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.

Whenever the context so requires, the singular number shall include the plural and vice versa, and the masculine, feminine and neutral genders shall include each other. If any term or provision of this Agreement is invalid, illegal or unenforceable, all other terms and conditions of this Agreement shall nevertheless remain in full force and effect. The underlined headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.