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FILMMAKER AGREEMENT

 

1.                  Agreement.  This is a binding agreement ("Agreement") between you ("you" or "your") and Kerber Technology Solutions, LLC ("Kerber Tech", "us", "we" or "our").  You acknowledge that you are at least 18 years of age and that all of the information you provide through the FilmTriangle.com website ("Website") shall be correct and complete.

 

IT IS IMPORTANT THAT YOU READ AND UNDERSTAND THIS AGREEMENT. This Agreement governs your use of the password protected filmmaker portions of the Website ("FMsite"), content uploading and usage, and software usage (collectively, the "Services"). Kerber Tech offers the Services only upon your unconditional acceptance of the terms and conditions without modification.  You may be required to agree to additional terms to access additional features of the Website. In the event such additional terms conflict with the terms of this Agreement, such additional terms shall control.  From time to time, Kerber Tech may change the terms of this Agreement and/or discontinue the Website at any time, without notice or liability to you. All such modifications shall become effective immediately. It is your responsibility to check for any changes each time you access the Website. Your continued use of the Website after the posting of any changes shall constitute your agreement with, and acceptance of, such changes.  In the event you do not agree to abide by the terms of this Agreement, you must not use the Website in any manner.  Selecting checking the "I accept the terms of this Agreement" box below, attaches your legally binding electronic signature to this Agreement, indicating you agree to be bound by all of its terms and conditions.  MISUSE OF THE WEBSITE MAY SUBJECT YOU TO CIVIL AND/OR CRIMINAL LIABILITY.

 

2.                  FilmTriangle.  Our Website, database of Films, data and other information associated with the Website (collectively "Content"), network of filmmakers, advertisers, distributors and customers ("Customers"), and software used in association with providing the Services are collectively referred to as "FilmTriangle". 

 

3.                  Film Submission Warranties.  By selecting the "I Agree" button below and submitting any video content ("Film") to the FMsite, you warrant that:

a.       You are the owner of all right, title and interest, including the copyright in all of the audio and video content ("Content") contained within the Film(s) OR that you have obtained fully executed written assignments and/or licenses from the owner(s) of the Content which you do not own ("Licenses") and that the Licenses allow you and Kerber Tech to use the Film as contemplated under this Agreement;

b.      You have written releases ("Releases") from all individuals, or their legal guardians, depicted in the Film and that the Releases allow you and Kerber Tech to use the Film as contemplated under this Agreement;

c.       The film does not infringe any intellectual property rights of any entity;

d.      The Film does not disparage any person, entity or product; and

e.       Production, distribution and display of the Film is not in violation of any local, state or federal law.

 

4.                  Impermissible Activity.  You shall not use the Website or any Kerber Tech server to transmit any data which: (1) is unlawful, threatening or abusive; (2) encourages criminal or other activity which would reasonably give rise to civil liability or otherwise violate any local, state, federal or international law; (3) is vulgar, hate-related, profane, obscene or offensive; (4) is pornographic or indecent; (5) contains false or misleading information (6) inhibits another user from use or enjoyment of this Website; (7) is defamatory or libelous; (8) contains a virus or surreptitious code; or (9) contains any type of commercial component or advertising; (10) includes any type of Spam, chain letter or non-employment related solicitation or advertising; (11) includes trade secrets, encrypted material, passwords or information on how to access password-protected material; (12) includes personally identifiable information regarding any person under 18 years of age, or (13) constitutes or promotes any form of intellectual property infringement, including, but not limited to copyright infringement. You also shall not (1) copy, reverse engineer, transfer, allow unauthorized access to or otherwise misuse the Website; (2) use the Website except as specifically authorized under this Agreement; (3) attempt to access data not intended for you;  (4) probe vulnerabilities of the Website for any reason; (5) interfere with the operation of the Website or with any third party's access to, or enjoyment of, the Website, including, but not limited to, infecting the Website, or any of its servers, or any other user of the Website with a virus, worm, Trojan horse or other malware; (6) attempt to obtain unauthorized access to any account, hardware, system or network related to FilmTriangle; (7) modify, adapt or create derivative works based on the Website or any content provided thereon or contained in any Kerber Tech servers or systems; (8) disrupt any account, hardware, system or network related to FilmTriangle; (9) attempt to extract any data from the Website other than data expressly made available to you by Kerber Tech; or (10) use any software related to FilmTriangle to develop any software which provides you or any other person or entity, unauthorized access to the Website.

 

You are solely responsible for all of your activities in relationship to the Website, including the contents of all Films you submit, and the consequences thereof. You agree to indemnify, defend and hold Kerber Tech harmless for any liability arising from your use of the Website. While Kerber Tech respects your privacy, you hereby acknowledge that this Agreement creates no reasonable expectation of privacy in any Film(s) you submit.  Kerber Tech may, but is under no obligation to, use blocking and/or filtering software and other monitoring devices to prevent the dissemination of unsolicited electronic communications (spam). You may not use the Website in association with such spam, any computer viruses or any other potentially damaging computer code.  Kerber Tech will prosecute violations of this provision to the fullest extent allowed by law and reserves the right to take additional action regarding any such activity or conduct.

 

Such additional action may include recovery of costs and expenses associated with identifying offenders and preventing their access to the Website as well as lost profits, damages, court costs and attorney fees associated with repairing any damaged software or hardware. Notwithstanding any provisions of Kerber Tech's Privacy Policy, Kerber Tech reserves the right to report the transmissions of any data or Film(s) which it believes violate any law or regulation to appropriate law enforcement officials, regulators, or other third parties, and to assist, and provide information to, law enforcement prosecuting users involved in criminal violations of the foregoing.

 

5.                  Your Account.  To access the FMsite, you must complete an online registration form to open an account ("Account") on your behalf and obtain a unique username ("Username") and password ("Password").  You shall access the FMsite only with your Username and Password. You shall not allow anyone other than you to access the FMsite using your Username and Password. You are fully responsible for all activities under your Account as well as all activities undertaken using your Username or Password. You are required to maintain information on your account current.  Kerber Tech shall not be liable for any errors or delays in payment attributable to inaccurate information contained on your account. You shall not use your Username or Password to collect, or attempt to collect, any third party information including, but not limited to, personally identifiable information. At all times, you must act in compliance with   all local, state, federal laws, statutes, rules and regulations applicable to your use of the Website.

 

6.                  Film Submissions.  For all Film(s) you submit to the FMsite, you hereby grant Kerber Tech, during the term of this Agreement, the right to store and distribute your Film through any and all of the following channels of distribution: 1)  the Internet, including, but not limited to websites, browsers, toolbars, software applications, peer to peer networks, downloadable files, electronic mail and  delivery; 2) television, including, but not limited to, via broadcast, cable or satellite, digital or optical removable media, as well as wired and wireless distribution and distribution through video gaming consoles; 3)  motion picture distribution; and 4) wired or wireless distribution to handheld electronic devices including, but not limited to, personal digital assistants, portable video players, portable phones, handheld gaming consoles, electronic mail, electronic messaging. You grant Kerber Tech the right to sublicense Customers to download your Film(s) from the Website and to copy and/or redistribute the Film(s) for such Customers' private/non-commercial use. You also grant Kerber Tech such additional rights in the Film(s) which may be necessary to effectuate the purposes of this Agreement.

 

7.                  Website Usage.  Kerber Tech will use commercially reasonable measures to maintain operation of, and access to, the Website. Kerber Tech shall not be liable for technical difficulties, third party actions, routine site maintenance or any other events outside Kerber Tech's control, which may, periodically, result in temporary denial of access to, or use of, the Website. Kerber Tech may, at any time, without notice or liability to you, modify or terminate any functionality associated with the Website. Neither Kerber Tech nor this Agreement authorizes you to provide any Film(s) to any third party by any means. Any transfer, distribution or license of any Film(s) by you must be pursuant to authorization provided by an entity other than Kerber Tech. You may, however, make copies of any Film(s) downloaded pursuant to this Agreement, provided the download and the copy are used solely for your own personal use.

 

8.                  Termination.  This Agreement shall continue until terminated by either you or Kerber Tech. Kerber Tech may terminate this Agreement, reject your Film(s), remove your Film(s) from the Website, terminate, suspend or restrict your access to the FMsite and/or Website immediately, if, in Kerber Tech's sole discretion, you have violated any provision of this Agreement. Kerber Tech may terminate this Agreement at any time, for any reason, upon reasonable notice to you. You may terminate this Agreement upon sixty (60) days written notice to Kerber Tech and ceasing to access the Website.  Such termination is your exclusive remedy in the event you are not satisfied with the Services. All sublicense rights granted by Kerber Tech to Customers under this Agreement shall survive any termination of this Agreement. 

 

9.                  Fees and Payments.  A ten (10) year listing fee of ("Listing Fee") must be paid for each uploaded file at the time your Film(s) is submitted to Kerber Tech. In the event you terminate this Agreement prior to the end of the ten (10) year term, no portion of your Listing Fee shall be refunded. In the event Kerber Tech terminates this Agreement prior to the end of the ten (10) year term, in the event you have remained in compliance with the terms of this Agreement up to and including such termination, upon Kerber Tech’s receipt of your written request for refund, Kerber Tech shall refund to you a pro rata portion of the Listing Fee based upon the number of years your Film(s) was listed on the Website prior to termination.

 

10.       Revenue Split. Net revenue ("Net Revenue") is the amount of money actually received by Kerber Tech as a result of Customer downloads of your Film(s) from the Website minus any governmental fees, if any, and minus one dollar ($1) per gigabyte per download. Any fraction of a gigabyte shall be prorated, and rounded up to the nearest cent. As long as you remain in compliance with the terms of this Agreement, Kerber Tech will pay you twenty percent (80%) of the Net Revenue actually received by Kerber Tech as a result of Customer downloads of your Film(s) from the Website ("Splits"). You will not receive any additional payment for any use made of your Film(s) by Customers or any third parties or for any other use of your Film(s) for which Kerber Tech does not receive payment.

 

11.       Payment.  Kerber Tech will forward your Splits to the address identified with your account within sixty (60) days of receipt by Kerber Tech of the Gross Revenue which causes your accrued Splits to exceed twenty dollars ($20.00).  Upon termination of this Agreement by you, for any reason, if the total of your accrued Splits does not exceed twenty dollars ($20.00) at the time of termination, all accrued Splits shall become the property of Kerber Tech and will not be paid.  In the event you wish to dispute any Split owed to you under this Agreement, you must notify Kerber Tech in writing within thirty (30) days of your receipt of the Split for the time period in question. Your failure to comply with this requirement waives your right to dispute such Split(s). You are solely responsible for paying any taxes, duties, government levies or other charges imposed by a taxing or other regulatory authority associated with your receipt of any Split(s). For the purposes of effecting payment and/or servicing your account, Kerber Tech may share with third parties, such as payment processors any related payment information that you provide.

 

12.       Modifications.  You acknowledge and agree that Kerber Tech may change its Listing Fees, Splits, pricing structure (unless Kerber Tech is required by law to provide longer notice) and/or any terms or conditions of this Agreement ("Changes") at any time. All such Changes shall become effective and binding immediately upon Kerber Tech posting the Changes to this Agreement on FilmTriangle. If any Change is not acceptable to you, your only recourse is to terminate this Agreement by providing us written notice as outlined above. You agree that by not terminating this Agreement following any Change, you acknowledge that you accept and agree to be bound by such Change.

 

13.       Violations.  Violations of this Agreement entitle Kerber Tech to receive from you minimum damages in the amount of $500 for each violation, plus legal fees. This is in addition to damages awarded to other wronged parties.

 

Contacting another Customer for any purpose other than one specifically requested by such Customer, or contacting a user after receiving instructions not to contact them, entitles the Customer and/or Kerber Tech to receive from you minimum damages in the amount of $500 for each violation, plus legal fees.

 

Using content in violation of this agreement entitles Kerber Tech to receive from you minimum damages in the amount of $500 for each violation, plus legal fees.

 

            14.       Website Content.  All Content is owned by Kerber Tech or its licensors and is protected by intellectual property laws, including copyright.  All copyrightable Content (other than this Agreement itself), including the selection and arrangement thereof, are ©2008 Kerber Tech, LLC. ALL RIGHTS RESERVED. This Agreement is copyright ©2000-08 Brett J. Trout, Esq.  Except as stated herein, you may not copy, reproduce, distribute, republish, download, post or transmit the Information in any form or by any means, including, but not limited to, electronic, mechanical, photocopy, recording, or otherwise, without the prior written permission of Kerber Tech.  By posting any material other than Film(s) to the Website, or by submitting any material directly to Kerber Tech, you thereby grant Kerber Tech a worldwide, royalty-free, and non-exclusive license(s) thereto.  This license extends to all photos, graphics, audio, or video that you either post or submit. The license includes the right to use, distribute, reproduce, modify, adapt, publicly perform, and publicly display such material, and to incorporate such material into other works in any format or medium now known or later developed. You are wholly responsible for the all Content you post to the Website or otherwise submit to Kerber Tech. You agree to hold Kerber Tech harmless from any claim or damage resulting in whole or in part from Content you post to the Website or submit to Kerber Tech.

You may not reproduce, sell, publish, distribute, modify, display, perform, re-post or otherwise use any portion of the Content in any manner other than in accordance with the intended use and in furtherance of the purpose of the Website.

 

You acknowledge that the Content is provided AS-IS, without any warranty, including any warranty of merchantability or fitness for an intended purpose.  Kerber Tech has the right, but is not obligated to, pre-screen, approve, or control the Content posted directly to the Website by users, including, but not limited to Film(s).  Kerber Tech does not guarantee the accuracy or veracity of any Content.  Kerber Tech does not (1) guarantee or ensure any product, service or transaction between a buyer and seller; (2) collect, process or escrow payment or goods; (3) transfer of title on behalf of buyers or sellers; or (4) ship or deliver any goods.

 

Accordingly, it is your duty to independently verify the accuracy and veracity of any Content BEFORE contacting any Customer or advertiser, or entering into any agreement therewith. Kerber Tech shall not be not liable for any false, misleading, offensive, indecent, inaccurate or otherwise objectionable Content. You acknowledge Kerber Tech is not liable to you or any third party for any errors, omissions, or loss or damage incurred as a result of using the Website. Your only recourse is to stop using the Website.

             15.       Hyperlinks.  The Website includes links to other websites wholly independent of Kerber Tech and the Website.  Kerber Tech makes no representation or warranty as to the accuracy, completeness or authenticity of any information contained on any such third party website.  Kerber Tech does not endorse, sponsor or guarantee such third party websites.  You agree not to hold Kerber Tech responsible for any advice, content, information, practices, products or services related to or made available through such third party websites. 

16.       Indemnification.  You agree to defend, indemnify and hold Kerber Tech, its subsidiaries, affiliates, assignees, managers and employees, its suppliers and their respective affiliates and agents, harmless from all claims, liabilities, damages and expenses (including attorneys' fees and expenses) arising out of or relating to your use of this Website, including, but not limited to: (1) your submission to this Website of any Content; (2) your alleged breach of this Agreement; or (3) your infringement of any intellectual property or other right of any person or entity.

 

17.       Transmissions.  You acknowledge that transmissions, other than Film(s), by you to or from this Website ("Transmissions") are non-confidential and that others may read and/or intercept such Transmissions.  Kerber Tech has the right, but not the obligation, in its sole discretion to review any Transmissions transmitted using this Website or Kerber Tech's server(s), and to edit or delete any Transmissions which violate any term of this Agreement. You hereby consent to Kerber Tech's collection and use of such Transmissions in accordance with Kerber Tech's then current Privacy Policy and acknowledge that submitting Transmissions to this Website, creates no confidential or fiduciary relationship between you and Kerber Tech.  By using this Website, you thereby assign all right, title and interest, including the copyright therein, in all Transmissions to Kerber Tech. Accordingly, Kerber Tech shall own all intellectual property rights in the Transmissions, and shall be entitled to the unrestricted use of the Transmissions for any purpose, commercial or otherwise, without acknowledgment, compensation or liability to you.  By submitting such Transmissions to this Website, you irrevocably waive all "moral rights" in such Transmissions.

 

18.       Limitation of Liability.  IN NO EVENT SHALL KERBER TECH, ITS PARENTS, ASSIGNEES, AFFILIATES, VENDORS OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM YOUR USE OR INABILITY TO USE THIS WEBSITE, OR FOR THE LOSS OF PROFITS, OR DAMAGES THAT MAY RESULT FROM THEFT, DELAYS, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, VIRUSES, FAILURE OF PERFORMANCE, DESTRUCTION OR UNAUTHORIZED ACCESS TO KERBER TECH'S RECORDS, OR FOR THE COST OF OBTAINING SUBSTITUTE GOODS AND SERVICES, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR FILM(S), INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, PROFITS, DATA OR OTHER INTANGIBLES WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, EVEN IF KERBER TECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH CASES, THE ABOVE LIMITATION OF LIABILITY MAY NOT APPLY TO YOU TO THE EXTENT THAT KERBER TECH'S TOTAL LIABILITY TO YOU FOR ALL LOSSES, DAMAGES, AND CAUSES OF ACTION SHALL NOT BE GREATER THAN ONE THOUSAND DOLLARS ($1,000).

 

19.       Disclaimer.  YOU ACKNOWLEDGE THAT THIS WEBSITE AND THE CONTENT HEREIN ARE PROVIDED ON AN "AS IS, WHERE IS" BASIS AND THAT KERBER TECH MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESSED OR IMPLIED, REGARDING THE WEBSITE OR THE CONTENT.  KERBER TECH DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, MERCHANTABLILTY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. BY USING OR ATTEMPTING TO USE THIS WEBSITE YOU EXPRESSLY ACKNOWLEDGE: (1) THE CONTENT COULD INCLUDE TECHNICAL INACCURACIES AND/OR TYPOGRAPHICAL ERRORS; (2) KERBER TECH DOES NOT REPRESENT OR WARRANT THE TIMLINESS, RELIABILITY, COMPLETENESS OR ACCURACY OF THE INFORMATION; AND (3) KERBER TECH DOES NOT REPRESENT OR WARRANT THAT THIS WEBSITE OR ITS SERVER(S) ARE FREE OF ERRORS OR VIRUSES OR OTHER POTENTIALLY DAMAGING CONTENT.

KERBER TECH MAY PERIODICALLY CHANGE THE CONTENT. KERBER TECH RESERVES THE RIGHT TO IMPLEMENT SUCH CHANGES, AT ANY TIME WITHOUT NOTICE TO YOU. UNLESS SPECIFICALLY INDICATED IN WRITING TO THE CONTRARY, NO REFERENCE IN THIS WEBSITE TO ANY PRODUCTS, SERVICES, PROCESSES, OR OTHER INFORMATION, BY TRADE NAME, TRADEMARK, MANUFACTURER, SUPPLIER, OR OTHERWISE SHALL CONSTITUTE OR IMPLY KERBER TECH'S ENDORSEMENT OR SPONSORSHIP THEREOF.

 

20.       Copyright Infringement Notice.  It is Kerber Tech's policy to investigate and respond to claims of intellectual property infringement. Pursuant to the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) ("DMCA"), Kerber Tech has designated the following agent to the U.S. Copyright Office to receive notifications of claimed copyright infringement relating to the Website:

 

·                     by mail:
Kerber Tech DMCA Copyright Agent
c/o Law Offices Of Brett J. Trout
516 Walnut
Des Moines, Iowa 50309

·                     by fax: (515) 280-7114

·                     by email: trout@bretttrout.com

 

If you believe any of the Website Content infringes your copyright, forward the following information to the above-identified DMCA Agent:

 

1.                  A physical or electronic signature of the copyright holder or an authorized agent acting on behalf of the copyright holder;

2.                  A description of the copyrighted work you claim is infringed or, if multiple works are involved, a representative list of the works you believe are infringed;

3.                  A description of the material that is allegedly infringing or the subject of infringing activity, and information reasonably sufficient to permit us to locate the material;

4.                  Your contact information, including your address, telephone number, and email address;

5.                  A statement that you have 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 that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

21.       Trademark.  All trademarks used on this Website are the property of their respective owners and may not be used without permission therefrom. Whether or not specifically designated as such, the FilmTriangle name and logo and all other colors, graphics, logos, sounds, images, icons and buttons displayed in this Website ("Marks") are trademarks of Kerber Tech and/or its affiliates.  Absent prior written consent from an officer of Kerber Tech, you may not copy imitate or use any portion of the Marks.

 

22.       Data Collection and Use.  Your Transmissions are subject to Kerber Tech's Privacy Policy.  By using this Website, you agree to review the Privacy Policy, and be bound by its terms and conditions.  From time to time, Kerber Tech may change its Privacy Policy without notice to you. Your continued use of this Website after the posting of any changes shall constitute your agreement with and acceptance of such changes.

Kerber Tech does not knowingly collect data directly from anyone under 13 years of age. If you believe Kerber Tech has inadvertently collected any such data, please contact our website administrator at webmaster @ FilmTriangle.com for information regarding removal of any such data from our files.

 

23.       Governing Law.  This is the entire agreement between you and Kerber Tech relating to your use of this Website. This Agreement shall be governed in accordance with the laws of the State of Iowa.  All disputes under this Agreement shall be resolved by litigation in the courts of the State of Iowa, including the federal courts therein, and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.

 

24.       Assignment. You may not assign your rights or obligations under this Agreement, either in whole or in part without the prior written consent of Kerber Tech.  Kerber Tech may assign its rights and/or obligations under this Agreement at any time without notice to you. This Agreement binds, and inures to the benefit of, all assigns authorized under this Agreement.

25.       Export. You shall abide by all applicable local and international laws, including but not limited to the export and import regulations of other countries.  Other than for Film(s) for which you own or control all of the necessary intellectual property rights therein, you shall not acquire for, ship, transfer or export any Film(s), or any portion thereof, directly or indirectly, in violation of any national or international treaty, law or regulation.

26.       No Agency.  You and Kerber Tech are independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, employment or other form of joint enterprise between you and Kerber Tech. You have no authority to, and shall not, bind or incur obligations on Kerber Tech's behalf. You shall not represent yourself as an agent or representative of Kerber Tech.

27.       Force Majeure.  Kerber Tech shall not be responsible for any failure in the performance of obligations covered by this Agreement resulting from acts beyond its control.  Such acts shall include but not be limited to acts of God or of the public enemy, U.S. or foreign governmental acts in either a sovereign or contractual capacity, war, terrorism, computer hacking, labor disputes, civil disturbances, power failures, communications transmission failures, natural disasters, governmental regulations, fire, flood, epidemic, restrictions, strikes and/or freight embargoes.

28.       Acknowledgement.  You acknowledge that international copyright treaties and laws, as well as other intellectual property laws and treaties, protect the Website, and that Kerber Tech retains all rights in the Website, without limitation.

29.       Remedies.  In addition to all other rights and remedies available to Kerber Tech, Kerber Tech shall have the right to obtain specific performance of your obligations hereunder.

30.       Severability.  If any provision of this Agreement is held invalid, void, or unenforceable under any applicable statute or rule of law, it shall to that extent be deemed omitted, and the balance of this Agreement shall be enforceable in accordance with its terms.

31.       General.  You acknowledge this Agreement, Kerber Tech’s Privacy Policy and other legal notices published by Kerber Tech to the Website constitute the entire agreement between you and Kerber Tech regarding the Website.  No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by Kerber Tech.  A waiver by Kerber Tech of any of the conditions to be performed by you hereunder shall not be construed to be a waiver of any succeeding breach thereof.  All remedies provided for in this Agreement shall be cumulative, and in addition to, and not in lieu of, any other remedies available to Kerber Tech at law, in equity or otherwise. You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement or the Website must be filed within one (1) year after such claim or cause of action arises or will be forever barred.