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USE OF THIS SITE.

1. ACCEPTANCE OF TERMS AND CONDITIONS.
2. INTELLECTUAL PROPERTY NOTICE.
3. TOUCH ARTWORKS.
4. LIMITED LICENCE.
5. TRADE-MARKS.
6. TOUCH FORUMS.
7. YOUR PERSONAL INFORMATION.
8. NO WARRANTIES.
9. LIMITATION OF LIABILITY.
10. THIRD PARTY LINKS.
11. APPLICABLE LAW.
12. COMPLIANCE WITH LOCAL LAWS.

1. ACCEPTANCE OF TERMS AND CONDITIONS.

Derivative Inc. ("Derivative") makes this Web site available for your use subject to the following terms and conditions ("Terms and Conditions"). If you do not agree with these Terms and Conditions, you should immediately discontinue all use of this Web site. These Terms and Conditions are subject to change without notice to you and it is your responsibility to check this Web site regularly for any such changes. Your continued use of this Web site shall constitute your acceptance of any changes to these Terms and Conditions. If you do not comply with these Terms and Conditions at any time, or if Derivative has reasonable grounds to suspect same, Derivative reserves the right to terminate your membership, your subscribership to the Derivative mailing list, your participation in any Derivative forums, your customer account and/or your access to this Web site (or any part of this Web site), as applicable, in Derivative’s sole discretion.

2. INTELLECTUAL PROPERTY NOTICE.

Copyright © Derivative Inc., 2001. All rights reserved. Derivative either owns the intellectual property rights, including, without limitation, copyright, in all text, HTML code, multimedia clips, images, graphics, icons, Touch Artworks (as defined herein) and other content that is made available to you on this Web site (collectively, "Content"), or has obtained all necessary licences to use the Content on this Web site and to grant to you the limited licence set out in these Terms and Conditions. "Content" shall be deemed to include all text, HTML code, multimedia clips, images, graphics, icons and other content that is posted, transmitted or otherwise distributed through any Derivative forums (i.e., mailing lists).

3. TOUCH ARTWORKS.

"Touch Artworks" means all Touch artworks, including, without limitation, Touch Components, Touch Environments and Touch Projects, uploaded to this Web site by licensees of TouchDesigner, TouchMixer and TouchPlayer. By uploading any Touch Artworks to this Web site, you:

(a) grant to Derivative a royalty-free, worldwide, non-exclusive, irrevocable licence to publish, perform, communicate to the public by telecommunication, display, print, download, upload, copy, use and modify (to the extent that the applicable file format is modifiable) such Touch Artworks and to grant to licensees of TouchDesigner, TouchMixer and TouchPlayer a limited, personal, royalty-free, non-exclusive sublicence to publish, perform, communicate to the public by telecommunication, display, print, download, upload, copy, use and modify (to the extent that the applicable file format is modifiable) such Touch Artworks;

(b) irrevocably waive, in favour of Derivative and any licensees of Derivative software, all moral rights that you may have, as author, with respect to such Touch Artworks, including, without limitation, the right to attribution of authorship, the right to restrain any distortion, mutilation or other modification of such Touch Artworks and the right to prohibit any use of such Touch Artworks in association with a product, service, cause or institution that might be prejudicial to your honour or reputation (collectively, "Moral Rights").

(c) represent that you either own the intellectual property rights in such Touch Artworks, including all components thereof, or have obtained all necessary licences to upload such Touch Artworks, including all components thereof, to this Web site and to grant to Derivative the licence in (a);

(d) agree to promptly defend Derivative and/or its licensees, as applicable, at your expense, against any claim that the display, printing, downloading, uploading, copying, use or modification of such Touch Artworks, or any component(s) thereof, by Derivative and/or its licensees infringes any intellectual property rights of any third party, and to save Derivative and/or its licensees, as applicable, harmless from all costs, damages and legal fees suffered as a result of such claim;

(e) agree that, in connection with the uploading of such Touch Artworks, you shall not post, transmit or otherwise distribute: (i) any threatening, abusive, libelous, defamatory, obscene or unlawful materials of any kind; (ii) any confidential information of Derivative or any third party without the authorization of the owner of such confidential information; (iii) any unsolicited or unauthorized advertising or promotional materials; or (iv) any materials that contain a virus, trojan horse, worm or other harmful or disruptive component.

(f) agree that if you do not comply with any term of this Section 3, or if Derivative has reasonable grounds to suspect same, Derivative shall have the right, in Derivative's sole discretion, to remove from this Web site any Touch Artworks uploaded by you.

4. LIMITED LICENCE.

(a) Derivative grants to you a limited licence to display on your computer, print, download and use the Content, excluding all Touch Artworks and Content posted, transmitted or otherwise distributed by you or third parties through Derivative forums, ("Core Content") solely for personal purposes, provided that you do not, except as expressly permitted by any licence agreement entered into by you in respect of Derivative software:

(i) modify the Core Content;

(ii) include the Core Content in or with any product that you create or distribute; or

(iii) copy the Core Content onto your or any other person’s Web site.

(b) Derivative grants to you, for the term of any licence agreement entered into by you in respect of Derivative software, a limited, personal, royalty-free, non-exclusive sublicence to publish, perform, communicate to the public by telecommunication, display, print, download, upload, copy, use and modify (to the extent that the applicable file format is modifiable) any Touch Artworks uploaded by third parties, provided that: (i) you do not use such Touch Artworks for the purpose of operating a catalog of Touch Artworks; and (ii) you do not rent, transfer or grant a sublicence to publish, perform, communicate to the public by telecommunication, display, print, download, upload, copy, use or modify such Touch Artworks, except when authorized to do so by Derivative in writing. You acknowledge that the foregoing sublicence is subject to Derivative being granted by the applicable third parties the rights required to grant such sublicence, in accordance with these Terms and Conditions.

(c) Derivative grants to you, for so long as you participate in any Derivative forum, a limited, personal, non-exclusive, royalty-free sublicence to use, publish, communicate to the public by telecommunication and reproduce any content posted, transmitted or otherwise distributed by third parties through such forum. You acknowledge that the foregoing sublicence is subject to Derivative being granted by the applicable third parties the rights required to grant such sublicence, in accordance with these Terms and Conditions.

(d) No other use of the Content by you is permitted. Nothing in these Terms and Conditions shall be construed as conveying to you any intellectual property rights of Derivative or any third party who owns any intellectual property rights in the Content.

5. TRADE-MARKS.

"Derivative", "Touch077", "Touch101", "TouchPlayer", "TouchMixer", "TouchDesigner" and "visual thinking" (collectively, the "Derivative Marks") are the trade-marks of Derivative. All other trade-marks and trade-names referred to on this Web site are the property of their respective owners. The display of trade-marks or trade-names on this Web site does not convey or create any licence or other rights in such trade-marks or trade-names. Any unauthorized use of the Derivative Marks is strictly prohibited.

6. TOUCH FORUMS.

By participating in any Derivative forum, you:

(a) agree that upon posting, transmitting or otherwise distributing any content through such forum, you grant Derivative a non-exclusive, worldwide, royalty-free, irrevocable licence to use, publish, communicate to the public by telecommunication and reproduce such content and to grant to any third parties who participate in such forum a limited, personal, non-exclusive, royalty-free sublicence to use, publish, communicate to the public by telecommunication and reproduce such content;

(b) agree to irrevocably waive, in favour of Derivative and any third parties who participate in such forum, all Moral Rights that you may have, as author, with respect to any content that you post, transmit or otherwise distribute through such forum;

(c) represent that you either own the intellectual property rights in any content that you post, transmit or otherwise distribute through such forum, or have obtained all necessary licences to post, transmit or otherwise distribute such content and to grant to Derivative the licence in (a);

(d) agree to promptly defend Derivative and/or any third parties who participate in such forum, as applicable, at your expense, against any claim that the use, publication, communication to the public by telecommunication or reproduction of such content, by Derivative or such third parties, infringes any intellectual property rights of any third party, and to save Derivative and/or such third parties, as applicable, harmless from all costs, damages and legal fees suffered as a result of such claim; and

(e) agree to use such forum only for the purpose of communicating with Derivative or third parties who participate in such forum regarding the applicable Derivative software, and without limiting the generality of the foregoing, to not use such forum to post, transmit or otherwise distribute: (i) any threatening, abusive, libelous, defamatory, obscene or unlawful materials of any kind; (ii) any confidential information of Derivative or any third party without the authorization of the owner of such confidential information; (iii) any materials that contain a virus, trojan horse, worm or other harmful or disruptive component; (iv) any unsolicited or unauthorized advertising or promotional materials; or (v) any material protected by copyright or other intellectual property right without the authorization of the applicable rightholder.

7. YOUR PERSONAL INFORMATION.

If you register for membership, join the Derivative mailing list or license or purchase any Derivative products or services, you agree to provide Derivative solely with true, accurate and complete information about yourself and to update such information as required in order to keep it true, accurate and complete. Derivative respects your privacy and wants you to feel secure in your use of this Web site and Derivative’s products and services. To understand how your personal information will be treated by Derivative, please review Derivative’s Privacy Policy.

8. NO WARRANTIES.

The Content is provided on an "as is" and "as available" basis. Derivative expressly disclaims any and all warranties and conditions of any kind, whether express or implied, including, without limitation, the implied warranties or conditions of merchantability, fitness for a particular purpose and non-infringement. Without limiting the generality of the foregoing, Derivative does not warrant the quality, accuracy, completeness, integrity or reliability of any Content, including, without limitation, any Touch Artworks or any Content relating to Derivative forums. You acknowledge that Derivative has not reviewed, screened, approved or otherwise endorsed any Touch Artworks or Content posted, transmitted or otherwise distributed by you or third parties through Derivative forums and that your use of, or reliance on, such Content is solely at your own risk. Although Derivative reserves the right to remove from this Web site, without notice and for any reason, any Touch Artworks or Content posted, transmitted or otherwise distributed through Derivative forums, Derivative has no obligation to remove any such Content that you may find objectionable or offensive.

9. LIMITATION OF LIABILITY.

In no event shall Derivative be liable for any damages whatsoever, including, without limitation, direct, indirect, incidental, special or consequential damages, arising out of, or in connection with, the use of, or the inability to use, this Web site or the Content (including, without limitation, any Touch Artworks or any Content relating to Derivative forums), or any other matter relating to this Web site.

10. THIRD PARTY LINKS.

This Web site may contain links to third party Web sites. The inclusion of any such links does not imply any approval, endorsement or recommendation of the material on such third party Web sites or any association with the applicable third parties by Derivative. Your use of any such link is entirely at your own risk. Derivative does not make, and expressly disclaims, any warranty or condition, express or implied, statutory or otherwise, respecting any third party Web sites to which you may link via this Web site, including, but not limited to, any warranties or conditions of merchantability, fitness for a particular purpose or non-infringement.

11. APPLICABLE LAW.

These Terms and Conditions shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein. Any dispute arising out of or in connection with these Terms and Conditions shall be settled in the courts of the City of Toronto in the Province of Ontario, although the foregoing shall not limit the ability of Derivative to seek injunctions and other remedies in other jurisdictions, as required, in order to stop continuing breaches of these Terms and Conditions by you.

12. COMPLIANCE WITH LOCAL LAWS.

This Web Site is controlled and operated at offices in Toronto, Ontario, Canada. Derivative makes no representation that the Content is appropriate or available for use in locations other than the foregoing. If you choose to access this Web site from other locations, you do so on your own initiative and you are responsible for compliance with local laws, if and to the extent that local laws are applicable.

 



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