This MyLocalRadio Terms & Conditions (“MLR T&C”) shall govern the relationship between Cook Brothers Broadcasting, a division of Old West Media, Inc (“Old West”) and each person who creates a membership account with MyLocalRadio.com/freephotos (“Member”). Members may obtain access to the MyLocalRadio.com/freephotos and view and/or download the pictures provided so long as they agree to strictly adhere to the following conditions: 1) None of the photos they download may be used for any commercial purpose. (unless the photograph is of the member only, at which time you may use it as you wish) 2) No photograph may be altered or used in such a manner as to cause embarrassment or create compromising situations for the subjects of the photographs.
1. CREATION OF AN ACCOUNT
1.1 Upon confirmation of these MLR T&C by Advertiser and subject to receiving the necessary identification information as specified in Old West’s Website’s log-in page, Old West will create a dedicated password protected account for the Member.
1.2 The Old West Services are available to all members who adhere to the MLR T&C.
1.3 Old West will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Member shall remain fully and solely responsible for any and all actions taken under Old West’s Account. Member undertakes to provide Old West with prompt written notification of any known or suspected unauthorized use of its Account or any breach of the security of its Account. Member is responsible for keeping the Account information provided to Old West current, complete and accurate.
1.4 Old West shall be entitled to refuse to open an Account (or if the Account has already been opened, immediately deactivate it and cease any further interaction associated with such Account) without any liability to Old West, if, in Old West’s sole discretion, Member is not in compliance with the provisions herein or is in violation of any applicable laws, Old West’s rules or policies (all of which are incorporated herein by reference).
2.1 Old West’s sole purpose is to provide photographs from high school sports activities and make them available to students and their family and friends.
2.2 Email alerts will be sent when pictures from the school that the member registers with has photos uploaded to MyLocalRadio.com/freephotos. Sponsors for the emails will be solicited by Old West to help defray the costs of business.
3. MEMBER’S PAYMENT OBLIGATIONS
3.1 Membership is free. Unless any member donates to the service, there are no fees or monetary obligations to take advantage of viewing and/or downloading the photos
3.2 Member acknowledges that they have no rights to sell any of the photographs or represent them as their own. Anytime photos from MyLocalRadio.com/freephotos are used on social media they will be credited to “My Local Radio” or “#mylocalradio”.
4. OLD WEST ADVERTISING PLATFORM
4.1 Old West may/will utilize the web pages for sponsored advertisement from time to time. Members are not obligated in any way to support any of the advertisers.
5. COMPLIANCE WITH LAWS AND REGULATIONS; PROHIBITED ACTIVITY
5.1 Old West represents and warrants that at all times it will be compliant with all relevant laws, regulations and generally accepted standards in any relevant jurisdiction as well with the applicable rules and policies, including without limitations with respect to privacy, collection and processing of personal data and information, protection of minors, the rights of third parties and fair competition.
5.2 Member acknowledges and agrees that at any time during the term of the Agreement, if Old West believes, in its reasonable judgment, that Member or anyone on its behalf is engaged in any conduct or activity which is prohibited under this agreement, Old West shall have the right (without prior notice to Member) to (i) remove and take any measures needed to prevent or correct such conduct or activity from being used in connection with the Services; and (ii) suspend or cease membership. For the removal of doubt, Old West shall not have any liability to Member whatsoever as a result of any of the foregoing actions taken by Old West.
7. INTELLECTUAL PROPERTY
7.1 As between Old West and Member: (i) Old West retains all rights, title and interest in and to all Intellectual Property Rights embodied in or associated with the Old West Photographs and Advertising Platform, Old West’s website, all of its Services as well as any derivative therefrom; and There are no implied licenses under the membership agreement, and any rights not expressly granted to Member hereunder are reserved by Old West or its suppliers. Member will not take any action inconsistent with Old West’s ownership of the Old West Advertising Platform, its website, all of its Services as well as any derivative therefrom. Neither party will exceed the scope of the licenses granted hereunder.
7.2 Member agrees that Old West, in its sole discretion, may use Member’s Marks for the purpose of advertising or publicizing Member’s use of the Services.
7.3 For the purpose of this Section 7, “Intellectual Property Rights” means the right and title in and to all intangible legal rights, whether or not registered, including, without limitation, patents, Marks, copyrights, moral rights, goodwill, know how, databases, trade secrets, confidential business and technical information.
8. REPRESENTATIONS AND WARRANTIES
Member represents and warrants that:
8.1 it has the full right, power, legal capacity and authority to enter into and perform its obligations under the Agreement;
8.2 it shall not engage in any illegal business practices in any jurisdiction in respect of the Appnext website, the Appnext Advertising Platform or the Services and it shall further comply in all matters with all applicable laws, regulations and generally accepted standards with respect to the same; and
8.3 it shall otherwise comply with all of its obligations under the Agreement.
9. DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY
EXCEPT AS EXPRESSLY STATED HEREIN, OLD WEST DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. OLD WEST DOES NOT REPRESENT OR WARRANT THAT ITS WEBSITE, SERVICES, OR THE OLD WEST ADVERTISING PLATFORM WILL OPERATE SECURELY OR WITHOUT INTERRUPTION. ALL PRODUCTS AND SERVICES PROVIDED BY OLD WEST HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” ADVERTISER ACKNOWLEDGES THAT IT DID NOT ENTERED INTO THE AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN.
OLD WEST WILL HAVE NO INDIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR OTHER LIABILITY WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, UNDER THE AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. APPNEXT AGGREGATE LIABILITY UNDER THE AGREEMENT (UNDER ANY THEORY OF LIABILITY) IS LIMITED TO AMOUNTS PAID OR PAYABLE TO OLD WEST BY ADVERTISER FOR THE SERVICES IN THE MONTH PRECEDING THE CLAIM. IN THE EVENT THAT THE FORMER LIMITATION OF LIABILITY IS HELD UNENFORCEABLE BY A COMPETENT COURT, OLD WEST’S AGGREGATE LIABILITY IS IN ANY CASE LIMITED TO US$ 1,000 PER EVENT, A SERIES OF EVENTS BEING CONSIDERED AS ONE SINGLE EVENT.
10.1 Except as expressly provided in the Agreement, Member (the “Indemnifying Party”) shall defend, hold harmless, and indemnify Old West and/or its subsidiaries, affiliates, directors, officers, employees, agents, successors and permitted assignees (collectively, the “Indemnified Party”) from and against any and all claims, damages, losses, suits, actions, demands, proceedings, expenses and/or liabilities (including but not limited to reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) filed by any third party against the Indemnified Party (collectively, “Third Party Claims”) arising out of a breach of any warranty, representation or obligation made by the Indemnifying Party under the Agreement.
10.2 The Indemnified Party shall: (i) promptly notify the Indemnifying Party of any Third Party Claim provided that a failure to give prompt notice shall not excuse or diminish the Indemnifying Party’s obligations under this Section 11 unless such failure shall materially and adversely affect the Indemnifying Party’s ability to defend such Third Party Claim, (ii) provide the Indemnifying Party with reasonable information, assistance and cooperation in defending the Third Party Claim at Indemnifying Party’s cost, and (iii) give the Indemnifying Party full control and sole authority over the defense and settlement of such Third Party Claim; provided, however, that any settlement will be subject to the Indemnified Party’s prior written approval (which approval shall not be unreasonably withheld or delayed) and provided further that Old West shall not be required to allow Advertiser to assume the control of the defense of a Third Party Claim to the extent that Old West reasonably determines that (i) such claim relates to the Old West Advertising Platform, (ii) any relief other than monetary damages is sought against the Indemnified Party, (iii) in the reasonable judgment of the Indemnified Party’s counsel, there may be a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense, or (iv) settlement of, or an adverse judgment with respect to, such Third Party Claim could reasonably be expected to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party. The Indemnified Party may join in the defense of such Third Party Claim with counsel of its choice at its own expense.
10.3 The failure of the Indemnifying Party to comply with Section 11.2 will entitle the Indemnified Party to act on behalf of the Indemnifying Party, at the expense of the Indemnifying Party.
11. TERMS AND TERMINATION
11.1 Member shall be entitled to terminate the Agreement with immediate effect, by written notice to Old West.
12. GOVERNING LAW
The Agreement shall be governed and construed in accordance with the law of the State of Wyoming and shall be subject to the jurisdiction of the courts located in Evanston, Wyoming, USA, whose jurisdiction shall be exclusive other than in respect of the enforcement of any judgment, where their authority shall be non-exclusive.
13.1 Subject always to the provisions of Section 14.2 below, neither party may assign the Agreement without the other’s prior written consent, which shall neither be unreasonably withheld nor delayed.
13.2 Notwithstanding the foregoing, (i) Old West shall be entitled to assign the Agreement to any third-party, without need of consent from Member, if such assignment is required as part of a merger, sale of assets, change of control or other similar transaction in which the assigning party or any entity within its group of companies is involved; and (ii) Old West led by or is under common control with Old West, where control shall mean the ability to direct the activity of a relevant person).
13.3 The Agreement is the complete and entire agreement between Old West and Member regarding the subject matter hereof and supersedes all prior agreements or understanding between the parties, and each party acknowledges that it has not relied upon any representation from the other which is not contained in the Agreement in entering into the Agreement.
13.4 Nothing in the Agreement shall create or be deemed to create a partnership, joint venture or principal-agent relationship between the parties and no party shall have authority to bind the other party in any way or manner.
13.5 The failure of either party at any time in enforcing any right or remedy under the Agreement shall not be construed as a waiver of any future or other exercise of such right or remedy.
13.6 Notwithstanding that the whole or any part of any provision of the Agreement may prove to be illegal or unenforceable, the other provisions of the Agreement and the remainder of the provision in question shall remain in full force and effect, and the parties shall replace such illegal or unenforceable provision with legal and enforceable provisions which will reflect to the greatest extent possible the intention of the parties hereunder.