AudioVideoweb.com LLC Service Agreement (Hereinafter "AV")
1a) Pay By Check or via Bank Transfer
3) Regulation of Certain Content
5) Interruption of Service
6) Load Balancing
9) Upgrades Downgrades Trial Account
11) Force Majeure
12) Confidentiality and Trade Secrets
14) Limitation of Liabilities
15) Disputes Choice of Law
16) Export Regulations
17) Cancellation of Service by Client
18) Effective Date of Cancellation
20) Late Payments and Taxes
21) Copyright Policy
1) Credit Card Authorization: The Client authorizes AV to charge the credit card(s) listed in this order for all charges for these services. If Client has multiple credit cards listed within their account Client authorizes AV to charge any and all credit cards listed in this order for all charges for these services. Client agrees to maintain such account to ensure such payments. Time is of the essence in connection therewith. Client may request that AV maintain multiple credit cards on file to ensure continued service. Client acknowledges that nonpayment will result in immediate suspension or termination of the service and deletion of its material. Credit Card Declines will be charged a service fee of $10.00 per failure after the first failure in any given billing cycle. This includes any and all billings but is not limited to daily billings, package upgrade as well as each time a client requests us to try the card again. There are no exceptions. All Add On Services will be removed from account upon deactivation including but not limited to, Pay Per View, Advanced Link Protection, Simulated Live Services, etc. Client is responsible to re-setup all Add On Services when payment is received and account is reactivated. It is the sole responsibility of Client to maintain active and in good standing Credit Cards. AV may make attempts to contact Client if their Credit Card fails however AV is NOT required to contact Client if their Credit Card fails. Client agrees to pay all costs of reinstatement, including without limitation costs of encoding. Client is required to fax all Credit Card information to AV if monthly charges exceed $500.00. This is required to continue service. AV will E-mail Client requesting this fax.
1a) All Pay By Check and/or Pay via Bank Transfer Clients are required to have an active credit card on file with AV at all times. If Client goes over the limits of their account AV will directly charge the credit card on file for the amounts owed for the upgrade. We will then send an upgraded invoice. A minimum $49.95 monthly account is required to setup to Pay By Check and/or Pay via Bank Transfer with AV and must be paid on a quarterly basis. Any account that falls below the $49.95 monthly rate is required to pay on a yearly basis to use Pay By Check and/or Pay via Bank Transfer.
2) Purpose: All services provided by AV may be used for lawful purposes only. Transmission or storage of any information, data or material in violation of any United States law is prohibited. This includes, but is not limited to: copyrighted material, material legally judged to be threatening or obscene, or material protected by trade secret and other statue. Client warrants and represents that all material it provides to AV will accord with such rules, and agrees to indemnify, defend and hold harmless AV from any claim(s) resulting from or associated with the use of the service, which damages AV, Client or any other party(ies) in any way.
3) Regulation of Certain Content: AV is a mere distributor and is relying on Client to prescreen and editorially control the content of Client's Web Page, if any, and the audio and/or video stream. AV reserves the right to request the removal of information in the Web Page or in the audio and/or video streams brought to its attention which it deems detrimental to AV or any person. Client agrees not to include in the Web Page or in the audio and/or video stream any technology, information or material which violates or infringes any patent, trademark, copyright, trade secret or any other rights of any person, firm or corporation, or which a reasonable person would consider abusive, profane or offensive, which is defamatory or harassing, or which violates or encourages others to violate any applicable law. AV reserves the right to refuse service to anyone, in its sole discretion. Client will not disseminate any illegal movies or graphic images. To protect itself, AV may without liability actively cooperate with and furnish identifying and supporting information to any person likely to be harmed by Client's violation of these provisions and to any law enforcement agency serving a warrant or subpoena on AV. AV will be the sole arbiter as to what constitutes a violation of this provision. Client agrees to indemnify, defend and hold harmless AV from any such claim(s).
4) Warranties: AV makes no warranties of any kind, whether expressed or implied, for the service it is providing. AV also disclaims any warranty, express or implied, of merchantability or fitness for a particular purpose. AV will not be responsible for any damage suffered. This includes loss of data resulting from delays, non deliveries, mis deliveries, or service interruptions caused by AV's negligence or the subscriber's errors or omissions. Use of any information obtained via AV is at your own risk. AV specifically denies any responsibility for the accuracy or quality of information obtained through its services.
5) Interruption of Service:
You hereby acknowledge and agree that AV will not be liable for any temporary delay, outages or interruptions of the Services. Further, AV shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).
6) Load Balancing:
If you decide to add the Load Balancing services for a Live Webcast please be aware of the following potential additional costs:
Utilizing more than one server for load balancing a live webcast requires that an upload and download connection for each server be engaged. Each of these connections is as if you are having two listeners/viewers connected to your event. For each server that is engaged an additional two listeners/viewers per server will be connected to your event. The bandwidth usage for each set of these two connections will be added to your bandwidth usage. If your event is a one time event please remember to shut down your encoder directly after your event to close all connections to all servers. If you do not close down your encoder connections will continue to incur cost as the system will continue to use the bandwidth. Client understands that they are 100% responsible for all bandwidth costs incurred. The additional bandwidth will be listed in the statistics as an additional connection/listener/viewer. There will be two entries for each Load Balanced Server Added that are duplicates and that are viewable directly from your statistics.
The cost of this service is based on the total amount of server space required. The more servers you require replication for the larger package will be required. Replication time will vary based on the amount of content and the amount of servers selected. Additional servers can be added based on your specific needs.
Archived Load Balancing clips must use ASCII characters meaning standard western alphabet only. This is important to know as any characters incorrectly used will NOT be distributed across multiple servers.
You hereby acknowledge and agree that AV reserves the right to temporarily suspend services for the purposes of maintaining, repairing, or upgrading its systems and network. AV will use best efforts to notify you of pending maintenance however at no time is under any obligation to inform you of such maintenance.
8) Termination of Service: Services will be suspended or terminated on the payments due date if Client fails to pay any amount when due. The contents will be deleted and will require then current encoding and upload charges to reinstate the material. All Add On Services will be removed from account upon deactivation including but not limited to, Pay Per View, Advanced Link Protection, Simulated Live Services, etc. Client is responsible to re-setup all Add On Services when payment is received and account is reactivated. AV reserves the right to terminate any customer and any and all services for any reason. AV reserves the right to terminate or cancel any of it's services at any time without prior notice. AV will use best efforts to notify effected Client(s) to prevent any interruption of service and will make all reasonable efforts to offer Client(s) comparable options that will enable AV to continue service. A waiver of this or any other provision by AV does not constitute a continuing waiver or a waiver of any other of AV's rights at law or in equity.
9) Upgrading or Downgrading Services:
a) Streaming Media Services may be upgraded or downgraded at anytime via e-mail and will take effect beginning on the next billing date. All charges incurred prior to the next billing date will be billed at the current service plan rates. The new rates will take effect on the first day of your next billing cycle.
b) For Pay-As-You go accounts, all accounts are calculated and set to the maximum amount of server space that has been uploaded at any given time. If customer uploads content AV will automatically adjust their monthly billing amount to the new rate. AV does not reduce server space amounts or reduce monthly billing amounts for server space that has been removed and/or deleted. If customer uploads content the account will be set to reflect billing for that total amount of server space. It is solely the customers responsibility to contact AV to reduce the monthly billing amount if customer removes and/or deletes content.
c)If an account goes over the current levels of a Package Deal for a server space overage the Client will be notified via e-mail immediately. For server Space Overage only Client has 24 hours to respond to the e-mail. If AV does not receive an e-mail response within the 24 hour period AV will automatically upgrade Client to the Package Deal suggested in the e-mail. If Server Space levels exceed their current package levels by more than 20% AV reserves the right to immediately upgrade the package to the next best package without notice. AV may or may not notify Client of the upgrade directly after upgrade is applied. If Clients credit card fails during the billing and upgrade procedure of an account who's levels exceed their current package levels by more than 20% AV reserves the right to immediately suspended or terminate service. For Bandwidth Overages Client will be upgraded immediately to the next best priced package without being notified. Client understands that they MUST at all times be in a package that consists of enough bandwidth to cover their usage. If Clients credit card fails during the billing and upgrade procedure of an account that has any special deal or percentage reduction, AV reserves the right to deactivate account immediately and the percentage reduction will be removed. Client will be required to pay full retail price when reactivated. All add on services will be deactivated and will also be charged full retail price to reactivate. Client will be fully responsible to re-setup all add on services upon reactivation. AV is not responsible for lost setups for all Add On Services including but not limited too: Pay Per View System, Advanced Link Protection, Digital Rights Management System, Load Balancing, Podcasting, Platlists, Simulated Live Setups, etc.
d) Trial accounts that go over the limits of a Trial account may be activated to a package level that is best suited for the amount of Server Space and Bandwidth that has been used. There will be NO refunds once a trial account has been activated. If Client requests deactivation AV will immediately deactivate the account however any and all activation fees will not be refunded. It is solely the responsibility of Client to monitor their account and to make sure they do not exceed the limits of a trial account.
e) Yearly Simplified Live Streaming Packages (BASIC LIVE, LIVE PLUS, PRO LIVE, ENTERPRISE LIVE) are purchased by client on a per year basis ONLY. Changing from one package to another package requires full payment of the new package and the start date will restart and begin on the first day of purchase. In other words, regardless how long a client has been in a specific package nor how much has been spent on said package there will be no transfer of a paid amount used to reduce the cost of a new package payment. There are no refunds or package conversions financially when going from one yearly package to an alternate yearly package. Client will be required to pay full retail price for the new yearly package at time of purchase and the start date of the new package will reset and begin then.
10) Nonsolicitation: During the Term hereof and for a period of two (2) years thereafter, Client agrees not to hire, solicit nor attempt to hire or solicit the services of any employee, subcontractor or vendor of AV without the prior written consent of AV. Both parties agree to bind their respective employees to adhere to the provisions of this section, as well as the provisions of sections 9(a)(Confidentiality) and (b)(Trade Secrets) below.
11) Force Majeure: AV is excused from any failure or delay in performance of responsibilities otherwise imposed by this Agreement for any cause beyond its reasonable control. Such causes shall include without limitation fires, floods, storms, earthquakes, civil disturbances, disruption of telecommunications, transportation, utilities or necessary supplies, governmental action, computer viruses and incompatible or defective equipment, software or services not supplied by AV. Nothing herein enlarges any warranty or diminishes any disclaimer provided in Section 4("Warranties").
12) Confidentiality and Trade Secrets: a) Confidentiality: Each party hereby acknowledges that it may be exposed to confidential and proprietary information belonging to the other party or relating to its affairs, including without limitation technical information and development techniques, business and financial information, visitor lists and other information designated by a party as confidential or proprietary. Confidential Information does not include (i) information already known or independently developed by the recipient; (ii) information in the public domain through no wrongful act of the party, or (iii) information received by a party from a third party who was free to disclose it. Each party agrees that during the Term and at all times thereafter it shall not use, commercialize or disclose the other party's Confidential Information except in performing its obligations under this Agreement. Each party shall use the same degree of care in safeguarding the other party's Confidential Information as it uses in safeguarding its own Confidential Information, but in no event shall it use less than due diligence and care. Neither party shall alter or remove from any Confidential Information of the other party any proprietary, copyright, trademark or trade secret legend. b) Trade Secrets: AV represents that its hardware and software configurations are trade secrets. Client shall not access internal components of hardware; source codes or object codes of software or any other internal hardware or software configurations by either direct means or by means of any process of reverse engineering. Client agrees that by failing to comply with this provision, it shall be assessed a penalty of not less than $10,000.00. By assessing this penalty AV does not waive its right to use any other legal remedy available to them including the remedies set forth in §30-14-410 et. seq. The Uniform Trade Secrets Act.
13) Injunctive Relief: The parties acknowledge that violation by one party of the provisions of Section 9("Confidentiality") or Section 7("Nonsolicitation") would cause irreparable harm to the other party not adequately compensable by monetary damages. In addition to other relief, it is agreed that temporary and permanent injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.
14) Limitation of Liabilities: The following provisions are a material condition of this Agreement and reflect a fair allocation of risk: a) Remedies. Client agrees that if AV violates any warranty or other provision of this Agreement, and AV determines that repair or other corrective action is not economically or technically feasible, Client's sole and exclusive remedy will be to seek a refund of up to the amount paid by Client to AV for services rendered hereunder during the previous one (1) month.
b) Liabilities. AV IS NOT LIABLE FOR ANY AMOUNT EXCEEDING THE PRICE PAID BY CLIENT FOR SERVICES HEREUNDER DURING THE ONE (1) MONTH PRECEDING THE EVENT GIVING RISE TO ANY CLAIM. IN NO EVENT SHALL AV BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS OR PROFIT, LOST DATA, BUSINESS INTERRUPTION OR ATTORNEYS FEES) EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY.
15) Disputes, Choice of Law: Except actions for certain injunctive relief authorized under Section 10("Injunctive Relief") which may be brought in a court of competent jurisdiction at any time, the parties agree that all disputes shall be submitted to a single arbitrator for binding arbitration under proceedings conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award of the arbitrator shall be limited to remedies otherwise available in court and shall include a written explanation of the decision. The disputants shall equally share in the costs incurred by invoking the arbitration process. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE UNITED STATES AND MASSACHUSETTS FOR AGREEMENTS ENTERED INTO AND TO BE WHOLLY PERFORMED THEREIN, AND ANY ACTION SHALL BE INITIATED AND MAINTAINED IN A FORUM OF COMPETENT JURISDICTION IN MASSACHUSETTS.
16) Export Regulations: The transfer of technology across national boundaries is regulated by the US Government. Client agrees not to export or re-export (including by way of electronic transmission) any data or technology derived from its Web Page, if any, or its audio and/or video stream without first obtaining any required export license or governmental approval. Client shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by US regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the US Department of Commerce. This provision and the assurances made herein shall survive termination of this Agreement.
17) Cancellation of Service by Client: Client shall have the right to terminate service unless an AV Written Agreement specifies otherwise. Prior to cancellation of service, Client is responsible for removing their materials from their allotted space on AV's servers. AV will not be responsible for storage and preservation of Client's materials at any time. Client is responsible to cancel service when service is no longer required. AV reserves the right to bill all active accounts that have not been canceled by Client. NO refunds will be given due to Clients failure to cancel service. AV is not responsible for multiple charges on Clients Credit Card due to account(s) remaining active. It is the sole responsibility of Client to Deactivate account(s) and confirm that their Credit Card is not being billed. AV reserves the right to immediately collect, up to the total of any charges associated with the account(s) that have not been satisfactorily paid by charging the clients Credit Card(s) on file.
18) Effective Date of Cancellation: Upon receipt of written notice from Client, followed by written acknowledgment from AV to cancel the service, the Effective Date of Cancellation for all non contract or any non specifically agreed upon accounts shall be the end of the current billing cycle. No refunds will be made for the current billing cycle. All monies due, but not limited to, for Bandwidth, Server Space, Website Hosting and all other services offered by AV are due upon cancellation of service. All signed contracts or agreements must be paid in full prior to cancellation. All monies due, but not limited to, related to signed contracts and agreements for the FULL term of the contract or agreement must be paid in full without exception prior to cancellation or deactivation of account(s).
20) Late Payments and Taxes: All invoices due upon presentation. Services may be suspended or terminated immediately if Client fails to pay any amount when due. Ten (10) days following Client's failure to pay on the due date, a late fee shall be assessed in the amount of $50.00. Beginning with the second month, interest shall accrue on the unpaid balance at the rate of 1.5% per month. Any late payment shall be subject to costs of collection, including reasonable legal fees. Client shall pay, indemnify and hold AV harmless from all sales, use, gross receipts, GST, value-added, personal property or other tax or levy (including interest and penalties) imposed on the services and deliverables provided hereunder, other than taxes based on the net income or profits of AV. Late payments will result in deletion of Client's material. Client agrees to pay all costs of reinstatement, including without limitation costs of encoding. In the event that Client does not pay the amount owed and after all efforts to contact and bill out the Clients credit card(s) on file are exhausted the account will be turned over to a collection agency at which time Client will be charged the orginal balance due plus an additional minimum 30% charge or a $50.00 charge based on which ever is greater. Once the account is turned over to the collection agency the Client will no longer be able to pay the original charge as the new charge will include the percentage based on how long and if it required legal and court costs. If these matters require the collection agency to take the Client to court the minimum additional charge will be 60% of the original bill added to the new total charge. i.e.: If Client owed $100.00 the new charge prior to going to court would be $130.00 and if it does have to go to court the cost to client would be $160.00. AV will vigorously pursue any and all Clients for non payment.
21) Copyright Policy: AV does not, and cannot, control what content is available to you using the AV Network. AV Clients decide what content to make available to others using the AV network and what content to download. Clients are responsible for complying with all applicable federal and state laws applicable to such content, including copyright laws.
AV respects copyright law and expects our Clients to do the same. Unauthorized copying, distribution, modification, public display, or public performance of copyrighted works is an infringement of the copyright holders' rights. As a condition to your account with AV, you agree that you will not use the AV service to infringe the intellectual property rights of others in any way. AV will terminate the accounts of Clients who are repeat infringers of the copyrights, or other intellectual property rights, of others. In addition, AV reserves the right to terminate the account of a Client upon any single infringement of the rights of others in conjunction with use of the AV service, or if AV believes that a Clients conduct is harmful to the interests of AV, its affiliates, or other Clients, or for any other reason in AV's sole discretion, with or without cause. AV reserves the right, with or without cause, to discontinue service at anytime for any reason with or without contacting AV's Client.
In accordance with the Digital Millennium Copyright Act of 1998 (the text of which may also be found on the U.S. Copyright Office web site at http://lcweb.loc.gov/copyright/, AV will respond expeditiously to claims of copyright infringement committed using the AV service that are reported to AV's 'Designated Copyright Agent' identified below. If you are a copyright owner, or authorized to act on behalf of an owner of the copyright or of any exclusive right under the copyright, please report your notice of infringement by completing the following notice form and delivering it to the Designated Copyright Agent:
NOTICE OF ALLEGED INFRINGEMENT OF COPYRIGHT
1. Identity of the copyrighted work that you claim has been infringed, or, if multiple copyrighted works are covered by this Notice, a representative list of the copyrighted works that you claim have been infringed using the AV service:
2. Identification of the material that you claim is infringing:
3. Your street or mailing address, telephone number, and, if available, email address:
4. I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g. fair use).
5. I hereby state that the above information in this Notice is accurate and, under penalty of perjury, that I am the copyright owner, or authorized to act on behalf of the owner of the copyright or of any exclusive right under the copyright.
6. Electronic or physical signature of the copyright owner or of a person authorized to act on behalf of the owner of the copyright or of any exclusive right under the copyright:
Full legal name:__________________________________
All claims of copyright infringement should be delivered to the following 'Designated Copyright Agent' of AV:
217 West Main St.
Cut Bank, MT. 59427
22) Resellers: The AV reseller program is available with the Legacy Monthly Packages ONLY. Client must have an active and paid up to date account. The AV reseller program percentages are paid based on the monthly charges paid on the account's billing dates. In other words: The monthly charge paid on an account's billing date, determines the percentage paid. Any additional charges that accounts may incur during the billing cycles are not included in the reseller program percentages. Resellers discounts do not apply to Custom Pricing. AV reserves the right to: change resellers discount percentages, discontinue service to reseller, or to discontinue the reseller program completely at anytime. Resellers must at all times be in good standing with all account balances paid in full. Resellers are considered independent contractors and nothing more. Technical support is provided directly to the reseller only. Customers of the reseller must contact the reseller regarding any technical issues they have. Payments to reseller are made based on all paid accounts for the previous month and are mailed out between the 3rd and the 15th of the month. Any and all chargeback's incurred from any client that signs up through a resellers order forms or is added to a reseller's master account is 100% responsible for the total amount of lost revenue. Amounts will be deducted from monthly check sent to reseller and if amount exceeds the next months reseller check the reseller's credit card on file will be billed for the remaining amount. It is the responsibility of the reseller to contact any client that files a chargeback and to fully resolve the issue. Reseller must contact his client in a timely manner to prevent incurring the cost of this chargeback. Reseller can review all billing history for all of their accounts from the Account Management Interface Login area. All parts of the AV Service Agreement apply to resellers.
23) Specials: Specials are updated monthly on the AV website and are subject to change at anytime. AV reserves the right to discontinue any and all specials at anytime. Any Client that is paying specials pricing will remain at that specials price for as long as they continue service in the specials package pricing they are currently in. Once a Client either deactivates their account, upgrades or downgrades their account they will no longer be eligible for that special again unless AV continues to offer that specific special.
24) Miscellaneous: This is the entire Agreement between the parties. This Agreement supersedes all previous representations, understandings or agreements and shall prevail notwithstanding any variance with terms and conditions of any order submitted. This Agreement may be modified or amended only by a writing signed by the party against whom enforcement is sought. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Heading are for reference purposes only and have no substantive effect. Each party is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Use of AV's services constitutes acceptance of this Agreement. All other terms shall be negotiated in good faith.