Last Updated: June 30, 2005

1. Introduction

Welcome to The New York Observer's network of Web sites including betabeat.com ("Web site"). This Web site is owned and operated by The New York Observer, L.P. ("Company"). In addition to the Content on the Web site, the Web site may provide you with various publishing and community services such as the ability to post information and reviews or participate in online discussions or blog talkback ("Services"). By using our Web site and the Services, you are accepting the practices described in these Terms of Service. If you do not agree to these Terms of Service, please do not use the Web site and exit immediately. We reserve the right to modify or amend the terms of our Terms of Service from time to time without notice. Your continued use of our Web site and any affiliate Web sites following the posting of changes to these terms will mean you accept those changes.

2. Copyright and Ownership

All of the content featured or displayed on the Web site, including without limitation text, graphics, photographs, images, moving images, sound, and illustrations ("Content"), is owned by Company, its licensors and/or its Content providers. All elements of the Web site, including without limitation the general design and the Content, are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights. The Services and the Web site may only be used for the intended purpose for which such Web site and Services are being made available. Except as may be otherwise indicated in specific documents within the Web site, you are authorized to view, play, print and download documents, audio and video found on our Web site for personal, informational, and noncommerical purposes only. You may not modify any of the materials and you may not copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information or work contained on the Web site. Except as authorized under the copyright laws, you are responsible for obtaining permission before reusing any copyrighted material that is available on the Web site. For purposes of these Terms of Service, the use of any such material on any other Web site or networked computer environment is prohibited. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Web site and Services. The Web site, its Content and all related rights shall remain the exclusive property of Company or its licensors unless otherwise expressly agreed. You will not remove any copyright, trademark or other proprietary notices from material found on these Web site.

In the event you download software from the Web site, the software, including any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the "software") are licensed to you by Company or its licensors. Company does not transfer title to the software to you. Company (or its licensors) retains full and complete title to the software, and all intellectual property rights therein. You may not redistribute, sell, decompile, reverse engineer, disassemble, or otherwise reduce the software to a human-readable form.

3. Corporate Identification & Trademarks

All trademarks, service marks and trade names of Company and its partners and licensors used herein (including without limitation: Company, the Company corporate logo, and the associated designs and logos) (collectively "Marks") are trademarks or registered trademarks of Company or its affiliates, partners or licensors. You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify the Marks in any way, including in advertising or publicity pertaining to distribution of materials on this Web site, without Company's prior written consent. The use of the Marks on any other Web site or networked computer environment is not allowed. You may not use the Marks as a "hot" link on or to any other Web site unless establishment of such a link is approved in advance.

4. Restricted Content & Activities

You agree that you will not use the Web site to post or upload any of the following:

• Offensive language, such as profanities and expletives; sexually explicit or pornographic material; hate speech; defamatory, abusive, threatening or harassing speech; or racial, religious or personal attacks of any kind
• Material which infringes upon the copyright, trademark, patent, trade secret or other proprietary rights or rights of publicity or privacy of third parties
• Multimedia Content of any kind, such as audio and video files
• Promotion of any activity that may be found illegal at the local, state or federal level (including, but not limited to, laws governing export control, consumer protection, unfair competition, antidiscrimination or false advertising), or any Content that is itself illegal in any way, such as fraudulent advertising or advertising involving the sale of counterfeit or stolen items. Furthermore, you may not list any item on the Web site (or consummate any transaction that was initiated using our Services) that, by paying to us a fee could cause us to violate any applicable law, statute, ordinance or regulation.
• Direct links to or descriptions of goods and services that are prohibited under these Terms of Service
• Commercial Content of any kind, including without limitation graphic and text advertisements, chain letters, spam offers, surveys, contests, or any clear promotion of commercial interests beyond appropriate discussion of Web site Content
• Content that is untrue, inaccurate, deliberately misleading, or trade libelous
• Executable programming of any kind, such as viruses, worms, Trojan horses, spyware, time bombs, cancelbots, easter eggs, or any form of malicious or benign computer programming whatsoever
• Encrypted Content or Content that can be demonstrated to contain encoded messages
• Identifiable impersonations of another individual, by false representations in the text, by creating a misleading screen name that misrepresents the poster's identity in an identifiable fashion, or by using another individual's account to post, with or without that individual's knowledge
• Content that creates liability for us or causes us to lose (in whole or in part) the services of our ISPs or other partners or suppliers

You further understand and agree that sending unsolicited email advertisements to any user of the Web site is expressly prohibited by these Terms of Service. Any such unauthorized use of our computer systems is a violation of these Terms of Service and applicable "anti-spam" laws. Such violations may subject the sender and his or her agents to civil and criminal penalties.

5. Right to Remove Content or Block Access

Company may, at its discretion but without any obligation, remove Content that does not meet the acceptable use guidelines in Section 4 or is otherwise inappropriate, according to its sole interpretation. Company may also remove all other Content by such user, disable a user's account, and otherwise prevent that user from using our services. Company may also, at its discretion, disable and suppress Content from any account where the chosen screen name is deemed to be offensive or inappropriate, or is a violation of trademark or copyright. We may also block your access to our Web site in the event that (a) you breach these Terms of Service; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users or us.

6. Account Security

You are entirely responsible for the security and confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to immediately notify us of any unauthorized use of your account or any other breach of security of which you become aware. You are responsible for taking precautions and providing security measures best suited for your situation and intended use of the Services and Web site. We have the right to provide user billing, account, Content or use records, and related information under certain circumstances (such as in response to legal responsibility, lawful process, orders, subpoenas, or warrants, or to protect our rights, customers or business). Please note that anyone able to provide your personally identifiable information will be able to access your account so you should take reasonable steps to protect this information.

7. Information Control

User published Content does not represent the views of Company or any individual associated with Company, and we do not control this Content. In no event shall you represent or suggest, directly or indirectly, Company's endorsement of user published Content. Company does not vouch for the accuracy or credibility of any user published Content on our Web site, and does not take any responsibility or assume any liability for any actions you may take as a result of reading user published Content on our Web site. Through your use of the Web site and Services, you may be exposed to Content that you may find offensive, objectionable, harmful, inaccurate or deceptive. There may also be risks of dealing with underage persons, people acting under false pretense, international trade issues and foreign nationals. By using our Web site, you assume all associated risks.

8. Transactional Partners

In some cases we partner with another company to co-promote their services within our Web site. In these cases, you are transacting directly with our partner. On those pages, the transactional partner's brand is clearly visible, and their terms of service are posted. When using these partner pages, you are bound by partner terms of service in addition to remaining bound by the Company Terms of Service. When there is a conflict between the Company Terms of Service and partner terms of service, Company Terms of Service shall be held as the primary, enforceable terms of service.

9. Links to Third Parties

This Web site contains hyperlinks to other Web sites controlled by third parties. These links are provided solely as a convenience to you and do not imply endorsement by Company of, or any affiliation with, or endorsement by, the owner of the linked Web site. Company is not responsible for the contents or use of any linked Web site, or any consequence of making the link.

10. Fees/Subscriptions

For all charges for any products and services sold on the Web site, if any, Company will bill your credit card. If you have elected to renew your subscription with our auto-renewal service, we will bill your credit card on the renewal date at the then current rates. In the event you want to change the billed credit card or opt out of our auto-renewal service, please go to the "Manage Your Account" section of the Web site, contact us or call 212.407.9347. In the event legal action is necessary to collect on balances due, you agree to reimburse Company for all expenses incurred to recover sums due, including attorneys' fees and other legal expenses. You are responsible for purchase of, and payment of charges for, all Internet access services and telecommunications services needed for use of this Web site.

11. Access and Interference

You agree that you will not use any robot, spider, scraper or other automated means to access the Web site for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the site or any activities conducted on the Web site; or (iii) bypass any measures we may use to prevent or restrict access to the Web site.

12. Your License to Us

User published Content remains the intellectual property of the individual user. By posting Content on our Web site, you grant Company a non-exclusive, perpetual, irrevocable, royalty-free, worldwide, fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such Content throughout the world in any media, whether now known or hereafter discovered. In addition, you warrant that all so-called "moral rights" in those materials have been waived.

13. Release

In the event that you have a dispute with one or more other users of the Web site, you release Company (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

14. No Warranty

Your use of and browsing of this Web site are at your own risk. WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND OUR SUPPLIERS PROVIDE OUR WEBSITE, EVERYTHING ON THE WEBSITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING THE INFORMATION CONTAINED ON THIS WEBSITE, AND SPECIFICALLY DISCLAIM ANY WARRANTY AS TO THE SUITABILITY, RELIABILITY, TIMELINESS OR ACCURACY OF THE INFORMATION CONTAINED ON THIS WEBSITE FOR ANY PURPOSE. COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE OR THE SERVERS THAT MAKES SUCH MATERIALS AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state.

15. Limitation on Liability

Company assumes no liability in the event that legal action is taken against you by a third party as a result of Content you publish on our Web site, whether for copyright infringement or any other illegal activity related to your Content. You represent and warrant that you own or otherwise control all of the rights to the Content that you post; that the Content is accurate; that use of the Content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify Company or its affiliates for all claims resulting from Content you supply. IN NO EVENT SHALL WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR WEBSITE, ANY CONTENT THEREON, OUR SERVICES OR THESE TERMS OF SERVICE (HOWEVER ARISING, INCLUDING NEGLIGENCE) OR YOUR USE THEREOF , WHETHER IN A CONTRACT ACTION OR BASED ON NEGLIGENCE, OR OTHER TORT ACTION, OR ANY OTHER CLAIM WHATSOEVER, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL COMPANY'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED FIFTY DOLLARS ($50.00).

16. Indemnity

You agree to defend, indemnify and hold Company and any affiliated company or individual harmless from any and all liabilities, costs, and expenses, including reasonable attorneys' fees, related to any violation of these terms by you or your authorized users, or in connection with the use of the Web site or the Internet or the placement or transmission of any message or information on this Web site by you or your authorized users or your violation of any law or the rights of a third party.

17. Force Majeure

Neither Company nor you shall be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond their reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, water, acts of God, war, revolution, civil commotion or acts of civil or military authorities or public enemies: any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest, including without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of other common carriers.

18. Privacy

Your use of our Web site and Services is subject to our Privacy Policy. If there is a conflict between this agreement and the Privacy Policy, the Privacy Policy will prevail. Please read our Privacy Policy.

19. General

Our Web site is published in the United States and is intended for users from the United States. U.S. law shall govern in any and all disputes, including privacy or defamation issues or otherwise. These Terms of Service and your use of the Web site, including without limitation the use and collection of personal information, shall be governed in all respects by the laws of the State of New York as such laws are applied to agreements entered into and to be performed entirely within New York between New York residents. Any action seeking legal or equitable relief arising out of or relating to this Web site will be brought and venue shall be proper only in the courts of the State and County of New York or the United States District Court for the Southern District of New York. Each party submits to the exclusive jurisdiction of the state and federal courts in New York. We do not guarantee continuous, uninterrupted or secure access to our Web site or Services, and operation of the Web site may be interfered with by numerous factors outside of our control. If any provision of these Terms of Service is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that these terms of service and all incorporated agreements may be automatically assigned by Company in our sole discretion. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. These terms of service set forth the entire understanding and agreement between us with respect to the subject matter hereof. 11 (Access and Interference), 12 (License), 13 (Release), 15 (Liability Limit), and 16 (Indemnity) shall survive any termination or expiration of this Agreement.

20. DIGITAL MILLENNIUM COPYRIGHT ACT ("DMCA") NOTICE

In operating the Web site, we may act as a "services provider" (as defined by DMCA) and offer services as online provider of materials and links to third party Web sites. As a result, third party materials that we do not own or control may be transmitted, stored, accessed or otherwise made available using the Web site. If you believe any material available via the Web site infringes a copyright, you should notify us using the notice procedure for claimed infringement under the DMCA. We will respond expeditiously to remove or disable access to the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the Content. Our designated agent (i.e., proper party for notice) to whom you should address infringement notices under the DMCA is Brian Kempner.

Please provide the following notice:

• Identify the copyrighted work or other intellectual property that you claim has been infringed;
• Identify the material on the Site that you claim is infringing, with enough detail so that we may locate it on the Site;
• A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
• A statement by you declaring under penalty of perjury that (a) the above information in your notice is accurate, and (b) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;
• Your address, telephone number, and email address; and
• Your physical or electronic signature.

21. Entire Agreement

These terms and conditions are the entire agreement between the user and Company and supersedes any prior understandings or agreements (written or oral).

22. Copyright Notice

All text, images, animation, videos, music, sounds, Web site design, graphics, text selections, arrangements, and all software are Copyright The New York Observer, L.P.