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Viametrix, Inc., a Texas corporation and its affiliates, successors, parents, subsidiaries, assigns, licensees and designees, (hereinafter called "Viametrix") is a provider of Internet Services including multimedia delivery and related services, (e.g., video production, encoding, hosting of live and/or scheduled multimedia broadcasts and other services as may be deemed necessary by Viametrix from time to time).
Viametrix web sites (viametrix.com) ("Web Sites"), hosting services ("Services") are provided to the User/Broadcaster/Licensee ("Customer") subject to the terms and conditions set forth below. Viametrix offers certain products and services via its Web Sites including, but not limited to, software tools ("Tools") which are used to manage multimedia files, create play lists and manage access to and distribution of same. Viametrix may revise these Terms and Conditions at any time by updating this web page. You should visit this page from time to time to review the then-current Terms and Conditions because they are binding on you.
Customer's use of Viametrix' services is specifically subject to this Agreement.
The "Initial Term" of this Agreement is specified in the associated Sales Order/Contract Summary "Order".
This Agreement will automatically renew ("Renewal Term") at the end of the Initial Term for the same period as the Initial Term unless you provide Viametrix with a written notice of termination thirty (30) days prior to the end of the Initial Term or Renewal Term. Termination notices are effective 30 days following their receipt by Viametrix.
If Customer chooses to cancel receipt of Services covered under its associated Order after the first 30 days of the Initial Term and prior to the end of the Initial Term all of the following apply:
If Customer provides a written notice of termination of this Agreement within the first thirty (30) days of the Initial Term of this Agreement
If Viametrix chooses to cancel this Agreement, it may do so at any time and for any reason by providing Customer with a thirty (30) day written notice. If this Agreement is cancelled by Viametrix and the Customer is not in breach of this Agreement, Viametrix will refund the pro-rata portion of any MONTHLY fees prepaid by Customer for services beyond the 30 day notice period for services not rendered.
In the event that either party defaults in the performance of any of its material obligations of the Agreement and such default is not cured within 5 business days after written notice is given to the defaulting party which clearly specifies the default and the intention to terminate this Agreement, the party not in default has the option of terminating this Agreement.
Fees and Charges Due under this Agreement are specified in the accompanying Order. Unless otherwise specified in the Order, the fees and charges are comprised of an initial payment and subsequent monthly payments. The initial payment is a non-refundable setup fee and is inclusive of the first months' fees and charges due. All fees and charges are billed in advance of services provided.
Customer is responsible for payment of all taxes, duties and other costs Customer may incur in connection with your use of the hosting services and solutions including but not limited to all hardware and software costs and providing all equipment and software necessary to connect to the Internet or other networks Customer uses in conjunction with this Agreement and any royalties or other charges relating to the use of data or systems owned by third parties as may be due from Customer's use of the hosting services and solutions.
Invoice Notices will only be sent via email and may be printed by Customer at Customer's option. No additional paper copies will be provided. Customer hereby agrees that Customer understands payment is still due whether, or whether not they are in reciept of any invoice by this means or otherwise.
In exchange for the limited rights granted to Customer herein, Customer agrees to pay Viametrix the fees and charges more specifically set forth in the associated Order by which the hosting services and solutions are purchased and is attached hereto. During the Initial Term (and any renewals) of this Agreement, Viametrix will provide Customer with invoice notfications, delivered electronically by email at the end of each calendar month, indicating the amount of fees and charges due by Customer. Customer agrees that all invoices will be paid in full by the due date of each calendar month and that failure by Customer to submit timely payment pursuant to this paragraph and the associated Order by which the hosting services and solutions are purchased attached shall constitute a material breach by the Customer and will terminate the obligation of Viametrix to provide future services under this Agreement. Upon the termination of Viametrix' obligation to provide future services Viametrix, at is sole option, may remove all of Customer's content from Viametrix' systems without further notice to Customer.
We welcome your payment by check. To expedite the transaction we may use ACH check conversion to deposit your check transaction. You will not receive a copy of your check in your bank statement. The amount, date and description of the transaction will appear as a Debit memo on your bank statement. CHECKS MAY BE PROCESSED ELECTRONICALLY. A $25.00 FEE FOR RETURNED CHECKS OR THE MAXIMUM AMOUNT PERMITTED BY LAW MAY BE CHARGED. RETURNED CHECKS, ALONG WITH THE RETURNED CHECK FEE, MAY BE ELECTRONICALLY PRESENTED TO YOUR BANK.
Currently Viametrix does not charge any fees to audience members, but reserves the right to do so in the future. All audience members must agree to abide by the terms of the software license required to access the broadcast of any Viametrix Customer. This license may be found on the Viametrix web site www.viametrix.com.
During the term of this Agreement, Viametrix, in its sole discretion and without prior notice to Customer, may monitor the use of the Services or Tools to ensure they are being used consistent with the terms of this Agreement. However, Viametrix is under no obligation to monitor Customer's use of the Services or Tools. Further, Viametrix does not actively monitor Customer's multimedia content distributed using the Services or Tools including the exercise of any editorial control over any content disseminated by Customer. Viametrix reserves the right to remove any or all of Customer's content from Viametrix' systems, if in Viametrix' sole discretion, the content is possibly illegal, potentially violates a Trademark or Copyright, may create legal liability for Viametrix or violates any term of this Agreement.
Violation of any provision of this Section Acceptable Use of Viametrix Services and Solutions shall be a material breach of the Agreement.
The Viametrix Privacy Policy may be found on the Viametrix web site at http://www.viametrix.com
The Tools are copyrighted material. They are licensed to the Customer/Licensee for Customer's use in accordance with the terms of this Agreement. These Tools, and access to the Viametrix Virtual Network® is licensed, not sold. All worldwide ownership of all rights, title and interest in and to the Tools, and all copies and portions thereof, including without limitation, all copyrights, patents, trademarks, trade secrets, inventions and other proprietary rights therein and thereto, are and shall remain exclusively in Viametrix. Customer shall acquire no rights of any kind to the Tools except for the limited rights expressly set forth herein. All title and intellectual property rights in and to the content which may be broadcast by the Customer through the use of the Tools is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties.
Customer acknowledges that prior to any end-user being able to access the Customer's content through the Viametrix Virtual Network®, all such end-users will be required to enter into an End-User License Agreement in a form substantially similar to that found on the Viametrix web site at http://www.viametrix.com
Viametrix hereby grants to Customer/Licensee a limited, non-exclusive right and license to use the trademarks, service marks, logos, and tag lines (collectively, the "Viametrix Marks") set forth on the Viametrix web site at http://www.viametrix.com attached hereto, which may be amended from time to time, in connection with the Tools and/or Services. Customer agrees to prominently display such Viametrix Marks on any Customer website from which end-users may be able to access the Customer's multimedia content. Customer agrees to: (a) secure Viametrix's prior written approval of all Customer/Licensee uses of the Viametrix Marks, such approval not to be unreasonably withheld; and (b) not use or combine the Viametrix Marks with the marks of any other party, including Customer's own marks, without securing Viametrix's prior written permission. Customer acknowledges and agrees that Viametrix retains all rights in and to the Viametrix Marks and that all uses of the Viametrix Marks shall inure to the benefit of Viametrix. Customer shall use the Viametrix Marks in accordance with the standards, specifications and instructions supplied by Viametrix from time to time. Customer agrees to immediately discontinue any use of the Viametrix Marks upon termination or expiration of this Agreement, or upon request by Viametrix. The failure of Customer to observe any obligation of this clause will entitle Viametrix immediately to terminate this Agreement and the limited license granted herein.
Designated Agent for Notices of claims of copyright infringement, trademark infringement, patent infringement or for abuse related to Viametrix, Inc., its customers, affiliates, employees, web site is:
Beth Blankenship
Viametrix, Inc.
# 305
3419 Westminster Ave
Dallas, TX 75205
United States
Phone: 214 587-9400
abuse@viametrix.com
In accordance with the Digital Millennium Copyright Act (DMCA) ( http://www.copyright.gov/legislation/hr2281.pdf), to be effective all notifications of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
Upon Viametrix' receipt of a proper notice of infringement (as required in the DMCA) Viametrix will
If Viametrix receives a "Counter Notification" (as required in the DMCA) from an affected Customer
In accordance with the Digital Millennium Copyright Act (DMCA), to be effective all Counter Notifications to claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
Customer agrees to indemnify, defend (at Viametrix's sole option) and hold harmless Viametrix and its officers, directors, shareholders, agents and employees against any claims, damages, obligations, liabilities, expenses and costs (including attorneys' fees and costs) arising out of or related to: (i) Customer's use of the Tools and/or the Viametrix Virtual Network®, including (without limitation) the content streamed by or at the request of Customer through the Tools and/or Viametrix Virtual Network® or any action or inaction taken by Viametrix regarding same; (ii) Customer's use of the Tools, Services and/or the Viametrix Virtual Network® to delivery multimedia content out of which arises fees (either current or past fees) payable to the creators, managers, producers or licensing agencies; and/or (iii) Customer's breach of any provision of this Agreement.
Viametrix warrants that the digital image of the Tools and the documentation downloaded with it will be complete and accurate copies of the current commercial release of the Tools and documentation as of the date downloaded from the Viametrix web site. Viametrix warrants that the Tools will perform substantially in accordance with the specifications set forth in the documentation. The above express warranties are made for the duration of this Agreement assuming that all fees/charges due and payable are paid to Viametrix on a timely basis in accordance with Term, Payment and Collections Policy of this Agreement and the associated Order by which the Services are purchased. The above express warranty does not cover any copy of the Tools that has been altered or changed in any way by Customer or others. Viametrix is not responsible for problems caused by the use or attempted use of the Tools in a computer hardware or operating systems environment other than the one specified in the associated Order attached hereto.
VIAMETRIX DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE TOOLS OR SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF THE TOOLS AND SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. THE TOOLS AND SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND VIAMETRIX DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS, IMPLIED, ORAL OR WRITTEN), RELATING TO THE TOOLS AND SERVICES OR ANY PART THEREOF, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. VIAMETRIX MAKES NO WARRANTIES RESPECTING ANY HARM THAT MAY BE CAUSED BY THE TRANSMISSION OF A COMPUTER VIRUS, WORM, TIME BOMB, LOGIC BOMB OR OTHER SUCH COMPUTER PROGRAM. VIAMETRIX EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO END-USERS, OR TO ANY THIRD PARTY. VIAMETRIX MAKES NO REPRESENTATION OR WARRANTY, AND EXPRESSLY DISCLAIMS ANY LIABILITY WITH RESPECT TO THE CONTENT OF ANY SOFTWARE/TOOLS AND/OR THE CONTENT STREAMED THROUGH THE TOOLS AND/OR SERVICES, INCLUDING BUT NOT LIMITED TO ERRORS OR OMISSIONS CONTAINED THEREIN, LIBEL, INFRINGEMENT OF RIGHTS OF PUBLICITY, PRIVACY, INTELLECTUAL PROPERTY RIGHTS, MORAL RIGHTS, OR THE DISCLOSURE OF CONFIDENTIAL INFORMATION.
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, VIAMETRIX SHALL NOT IN ANY CASE BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR OTHER SIMILAR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, BUSINESS INTERRUPTION, OR LOSS OF PROFITS, ARISING OUT OF THE USE OF OR THE INABILITY TO USE THE TOOLS AND/OR SERVICES, INCLUDING (WITHOUT LIMITATION) THE CONTENT DELIVERED THROUGH THE TOOLS AND SERVICES, OR FROM ANY BREACH OF THESE WARRANTIES EVEN IF VIAMETRIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN ANY CASE, VIAMETRIX'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE LIMITED RIGHTS GRANTED HEREIN.
Customer must notify Viametrix of any breach of the above warranties in writing during the term of this Agreement. In the event Customer encounters a performance problem with the Tools, Services or the documentation, Customer must report the problem in writing to Viametrix's Technical Support via email at http://www.viametrix.com or Viametrix may be contacted at the address shown on the Order.
Viametrix will arrange for Customer to download a replacement for any defective copy of the Tools or related documentation without charge provided that Customer reports the receipt of a defective copy in writing. If Viametrix is unable to provide a corrected copy of the Tools or the documentation within a reasonable time, Viametrix may elect to terminate this Agreement pursuant to paragraph 9 of this Agreement. The warranties set forth above are in lieu of all other warranties, whether oral, written, express, or implied, and THE REMEDIES SET FORTH ABOVE ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES. Accordingly, additional statements such as advertising or presentations, whether oral or written, do not constitute warranties by Viametrix and should not be relied upon as such.
The Tools and Services are not fault tolerant and are not designed or intended for use in hazardous environments requiring fail-safe operation, including, but not limited to, aircraft navigation, air traffic control systems, weapon systems, life-support systems, nuclear facilities, or any other application in which the failure of the Tools could lead to death or personal injury, or severe physical or property damage. Viametrix disclaims any implied warranty of fitness for High Risk Use.
The Tools are a "commercial item", as that term is defined at 49 C.F.R. 2.101 (OCT 1995), consisting of "commercial computer software" and "commercial computer software documentation", as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government end users acquire the Tools/Software and documentation with only those rights set forth herein.