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Terms & Conditions

  1. DEFINITIONS

 

            a) NetroMedia Financial Services Ltd. (NetroMedia) hosts business and personal streaming media and related services. NetroMedia’s services include, but are not limited to: the conversion of Customer's multimedia materials into a streaming video or audio format ("streaming media"); the hosting of Customer's streaming media and related components (Customer’s “Content”) on NetroMedia’s servers (that portion of the server allocate for Customer's use is hereafter referred to as "Customer's Allotted Space"); the electronic transfer or re-distribution (“streaming”) of Customer’s live and On-Demand content, the electronic transmission of information, graphics, sound and any other form of information transfer through the NetroMedia servers and lines of telecommunication; and the granting of permission to link Customer's web site to Customer's Allotted Space. NetroMedia may provide any other services, as necessary, for the operation of its business.

 

            b) By receiving and reviewing NetroMedia’s Terms & Conditions, you acknowledge that this is a binding legal agreement between NetroMedia and you as a Customer of NetroMedia’s      services. Having read and understood these Terms & Conditions, you acknowledge their         priority to any purchase order, negotiation, or advertisement, and agree to the terms herein. No     terms, conditions or reservations stipulated by the Customer and no verbal negotiations shall          annul, vary or add to any of these Terms& Conditions,  except in so far as expressly consented   to and agreed to in writing by NetroMedia.


            c) For special services, or customized solutions, a written NetroMedia Service Level Agreement may accompany these Terms & Conditions.  If such document accompanies these Terms &   Conditions, the terms of the written Service Level Agreement shall override any inconsistencies      or contradictory Terms & Conditions that may arise between the two documents.


 

 

  1. Representations and Warranties

 

            A.         Representations and Warranties of Both Parties.

 

Each party hereto represents and warrants to the other party that as of the commencement of the agreement for the provision of Services that:

 

i) such party is legally authorized to bind the relevant entity, which is validly existing and in good standing under the laws of the jurisdiction in which it is organized, with full legal power and authority to carry on its business as it is now being conducted;

 

ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by such party. No other corporate or shareholder action or other proceeding on the part of such party or its shareholders is necessary to authorize this Agreement and the consummation of the transactions contemplated hereby;

 

iii) this Agreement constitutes a valid and binding obligation of each party, enforceable against such party in accordance with its terms, except that such enforcement may be subject to receivership, bankruptcy, insolvency, reorganization, or similar laws now or hereafter in effect relating to creditors' rights; neither the execution, delivery nor performance of this Agreement nor the consummation of the transactions contemplated hereby will violate any provision of the charter or organizational documents of such party;

iv) there is no action, suit, claim, proceeding or investigation pending or, to the best of such party's knowledge threatened against or affecting such party, at law or in equity, before any foreign or domestic federal, state, provincial, municipal or other governmental department, commission, board, bureau, agency or instrumentality, or arbitration proceeding which would materially affect such party's abilities to enter into this Agreement or to perform its obligations hereunder;

 

v) the representations and warranties of each party contained herein are true, complete and correct; and the execution and delivery of this Agreement and the performance of each party's obligations hereunder will not violate any provision of any agreement or other instrument to which such party is a party or is otherwise bound.

 

 

            B.         Representations and Warranties of NetroMedia

 

NetroMedia represents and warrants to the Customer that to NetroMedia’s knowledge, NetroMedia owns or has all rights, permission and interests necessary to perform the Services, including, without limitation, the right to use and utilize the technology and intellectual property necessary to provide the Services; to NetroMedia’s knowledge, the performance of the Services by NetroMedia in accordance with this Agreement shall not infringe upon or otherwise violate any third party's valid patent, copyright or other intellectual property right; during the term of an agreement, the Services provided by NetroMedia shall be provided in accordance with applicable Canadian federal and provincial law; and by qualified personnel.

 

 

            C.        Representations and Warranties of Customer

 

Customer represents and warrants to NetroMedia that, as of the commencement of the delivery of Services, the Customer is in relation to the Content the author and copyright owner and/or proper licensee and/or has all rights necessary to enter into this Agreement, including, without limitation, all applicable copyright licenses or rights in the Content and all rights of publicity with respect to any authors, artists, artwork, text material, images, sound or video associated with the Content provided by the Customer to NetroMedia. Customer further represents and warrants that the Content is not defamatory, obscene, or otherwise unlawful in any jurisdiction or country in which it is intended to be uploaded, broadcast or distributed, and does not infringe or interfere with any intellectual property, contract, right of publicity, or any other proprietary right of any individual or entity wheresoever situate.

 

By using NetroMedia’s Services, Customer further represents that no Content violates the trademark or rights of any third party.  Customer warrants that the Content Customer provides for encoding by NetroMedia, and NetroMedia's encoding of those materials as Customer requests, will not infringe upon, violate or misappropriate any patent, copyright, trade secret, trademark, contract, or any other publicity right, privacy right, or proprietary right of any third party.  NetroMedia shall not be liable for any such infringement, violation, or misappropriation, and Customer shall indemnify NetroMedia against any and all losses and expenses, including for all attorneys' fees and other costs, relating to Customer's breach of this representation and warranty. 

 

NetroMedia shall not be held liable by the Customer for any unauthorized access, replication or redistribution of their streaming media outside the protection of NetroMedia’s secure streaming process.

 

 

 

 

 

3.      Customer's Content

 

            NetroMedia reserves the right to monitor or view Content uploaded by Customer onto             NetroMedia’s service, or Content streamed or delivered live by Customer from NetroMedia’s             delivery network service, at any time for the purpose of ensuring compliance with this      Agreement. NetroMedia reserves the right stop streaming any and/or all of the Customer's       Content from NetroMedia’s service  and to remove any and/or all of the Customer's Content      from NetroMedia’s service if that Content is, in NetroMedia’s sole discretion, potentially illegal,             a violation of trademark rights and/or copyright, or which may subject NetroMedia to liability, or    violate the acceptable use policy stated below in these Terms & Conditions. Upon stoppage of         the live stream, or removal of the Content, and subject to the Acceptable use Policy below, NetroMedia shall notify Customer of the reason for removal. In no instance shall NetroMedia be        liable for the removal of Content.

 

 

4.      Storage Area Network (SAN)  and Bandwidth Utilization

 

            NetroMedia’s Service Level Agreement specifies limits on bandwidth and Storage Area             Network  utilization. By accepting this Agreement, Customer agrees to be bound by the service            description applicable to its account. NetroMedia reserves the right to remove material and/or terminate or suspend the account due to any violation of bandwidth or utilizations limits             ("overage") that NetroMedia deems inappropriate or excessive. Repeat violations of the allotted             disk and/or bandwidth utilization may subject account to termination. Customer agrees to pay for all bandwidth and/or disk usage that exceeds their allotment based on the current charges             depicted on this site (and no less than one cent per megabyte in data traffic and one dollar per             megabyte in disk storage). NetroMedia is not responsible to notify Customer of overages and it          is the Customer's responsibility to ascertain these conditions. NetroMedia will make reasonable      efforts to keep client informed of overages exceeding Customer's allotment by 200% or more           but can not guarantee such notification. NetroMedia advises that Customer anticipate the       volume of users likely to view their media file in a given month and multiply that by the size of             the file to approximate bandwidth usage per month.

 

 

  1. Acceptable Use Policy

 

            These Terms & Conditions are designed to help protect NetroMedia’s customers and the Internet community from irresponsible or illegal activities. In the event that Customer violates        this Agreement through improper use of the Services, NetroMedia reserves the right to      terminate the Services without notice. However, NetroMedia shall make reasonable efforts to        advise Customer of the inappropriate behaviour and offer suggestions for corrective action.          NetroMedia reserves the right to immediately terminate its service to Customer for any flagrant     or repeat violations of this Agreement.

 

            Customer hereby agrees to not use any NetroMedia Service to transmit any Content that:

 

(a)        is offensive by community standards, such as Content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;

(b)        harasses or advocates harassment of another person;

(c)        involves the transmission of "junk mail", "chain letters", or unsolicited mass mailing or                "spamming";

(d)        promotes information that is false, misleading, illegal or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;

(e)        infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party or violates any export control laws including, without limitation, promoting an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;

 (f)       provides material that exploits people under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under the age of 18;

(g)        provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;

(h)        solicits passwords or personal identifying information for commercial or unlawful purposes from other users;

(i)         you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information);

(j)         engages in commercial activities and/or sales, such as contests, sweepstakes, barter,    advertising, and pyramid schemes, without our prior written consent; and

(k)        contains or will contain any disabling mechanism or feature, including any clock, timer, counter, computer virus, cancelbot, worm, software lock, drop dead device, Trojan horse routine, trap door, time bomb or any other codes, designs, routines or instructions that may be used to access, modify, replicate, distort, delete, damage, disrupt or disable the Content, any other Customer’s Content, the Services or any NetroMedia operating system software or hardware.

 

            Customer acknowledges that this list is not exhaustive.  NetroMedia will cooperate with any         and all appropriate legal authorities in investigating claims of illegal activity, including, but not        limited to illegal transfer or use of copyrighted material. Customer acknowledges and agrees   that NetroMedia may preserve Content and may also disclose Content as well as information contained in Customer's profiles, folders, transmissions, communications, passwords, or any other information NetroMedia considers applicable if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to comply with legal             process; to enforce these Terms & Conditions; to respond to claims that any Content violates       the rights of third-parties; or to protect the rights, property, or personal safety of NetroMedia, its            users and/or the public.

 

  1. Intellectual Property Rights – Licensing Fees

 

            Customer shall be responsible for insuring that Customer’s content will comply with all      applicable licensing requirements imposed by federal, provincial, state, or local authorities with          regard to contractual music licensing fees, including, without limitation, all SOCAN, BMI,             ASCAP, CISAC and SESAC licensing requirements and fees, as well as all requirements and        fees of relevant legislation, including but not limited to the Canada Copyright Act and the Digital      Millennium Copyright Act.

 

 

  1.  Indemnity

 

            Customer agrees to indemnify and hold harmless NetroMedia, its officers, its partnered Service providers, directors, employees, agents, successors and assigns from and against any claims           arising from a breach of Customer's representations, warranties or promises made in these             Terms & Conditions, including, without limitation, any loss, damage, liability (including          reasonable attorneys' fees and costs) resulting from the use of any NetroMedia Services in a            manner not expressly authorized. Customer further agrees to indemnify and hold harmless NetroMedia, its officers, directors, employees, agents successors and assigns from and against any claims arising from or in connection with any Content of the Customer.

            Customer shall indemnify and hold NetroMedia, its designated third parties and licensors of          underlying platform technology utilized by NetroMedia in performing the Services and all of   their officers, directors, agents, shareholders, representatives, attorneys and employees (the           "NetroMedia Parties") harmless from any and all Claims or portions thereof, arising out of or   resulting from controversies or litigation asserted by any third party against NetroMedia arising     directly or indirectly from: (i) Customer's material breach of any of its obligations,             representations or warranties hereunder; (ii) any combination of NetroMedia and its licensors’      technology with any product, technology or service of Customer or of any third party where    such Claim would have been avoided in the absence of such combination; and (iii) any Content   distributed by Customer pursuant to these Terms & Conditions.


 

 

  1.  Limitation of Liability

 

            NetroMedia provides best efforts to ensure the integrity and security of Customer's Content,        including the use of automated tape-back up systems where stipulated and required in a      previously signed services agreement, secure servers, and restricted access to back office     systems.  However, no procedure can guarantee complete and total security and integrity of    Content. Therefore, NetroMedia makes no guarantee and assumes no liability for the security            of any data on any server including "secure servers." Customer agrees to maintain separate          backups of any data other than the backup systems that NetroMedia has in place and      NetroMedia shall not be liable for the loss, or modification, of any Customer materials due to    any breach of security, network or hardware failure. NetroMedia’s backup systems are reserved     for NetroMedia’s use and are not available to Customer for the purposes of requesting media        whereby such missing or defective media is a result of circumstances not related to NetroMedia’s system failures or breach of security.

UNDER NO CIRCUMSTANCES WILL NETROMEDIA BE LIABLE TO CUSTOMER FOR DIRECT DAMAGES GREATER THAN THE SUM TOTAL OF PAYMENTS MADE BY CUSTOMER FOR THE USE AND OCCUPANCY OF CUSTOMER'S SPACE OR IN THE CASE OF SPECIAL SERVICES, INCLUDING ENCODING SERVICES, THE SUM TOTAL OF PAYMENTS MADE BY CUSTOMER TO NETROMEDIA FOR THE SERVICE FOR WHICH DAMAGES ARE CLAIMED. IN NO EVENT SHALL NETROMEDIA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF AND IN RELATION TO THIS AGREEMENT EVEN IF ADVISED BEFORE HAND OF THE POSSIBILITY OF SUCH LIABILITY. UNDER NO CIRCUMSTANCES WILL NETROMEDIA BE LIABLE TO CUSTOMER FOR ANY MARKETING, ADVERTISING, PROMOTIONAL EXPENSES OR ANY EXPENSES RELATED TO THE CUSTOMER'S USE OF NETROMEDIA'S SERVICE, REGARDLESS OF ANY EVENT, INCLUDING INTERRUPTION OF NETROMEDIA’S SERVICE OR REMOVAL OF CUSTOMER'S CONTENT. YOU EXPRESSLY ACKNOWLEDGE THAT NETROMEDIA HAS ENTERED INTO THIS AGREEMENT, AND HAS AND WILL MAKE THE NETROMEDIA SERVICES AVAILABLE IN RELIANCE UPON THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND THE DISCLAIMERS SET FORTH IN THESE TERMS AND CONDITIONS, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE CUSTOMER AND NETROMEDIA. YOU EXPRESSLY AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND THE DISCLAIMERS SET FORTH IN THESE TERMS AND CONDITIONS WILL SURVIVE AND CONTINUE TO APPLY IN THE CASE OF FUNDAMENTAL BREACH OR BREACHES, THE FAILURE OF ESSENTIAL PURPOSE OF CONTRACT, THE FAILURE OF ANY EXCLUSIVE REMEDY OR TERMINATION OF THIS AGREEMENT.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

 

  1.  DISCLAIMER OF WARRANTIES

    CUSTOMER’S USE OF NETROMEDIA SERVICES IS AT THE CUSTOMER’S  SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NETROMEDIA SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT FOR THE WARRANTIES STATED ABOVE, NETROMEDIA EXPRESSLY DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, WHETHER OR, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

            TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NETROMEDIA MAKES    NO WARRANTY THAT (i) ITS SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (ii)             NETROMEDIA SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-            FREE, (iii) THE QUALITY OF SERVICES WILL MEET YOUR EXPECTATIONS, AND (iv) ANY             ERRORS IN THE SOFTWARE WILL BE CORRECTED.

 

 

  1. Relationship – Independent Contractor

            In the performance of its services, NetroMedia will at all times be an independent contractor.       The Service Level Agreement and any change orders or amendments thereto  and any           Services carried out under the Service Level Agreement  shall not constitute, nor shall they be        deemed to constitute, either party as an employee, agent, partner or joint venture of the other,     and neither party shall express or imply that it has the authority to create any obligation on      behalf of the other party.


 

 

  1.  Governing Law /Jurisdictional Issues

These Terms& Conditions, and any accompanying Service Level Agreement,  will be governed by and interpreted in accordance with the laws of the province of British Columbia , Canada , without regard to any of its choice of law rules that might lead to the application of the law of another jurisdiction. Subject to the Arbitration paragraph below, any litigation arising out of or related to Customer’s use of NetroMedia’s Services will be brought only in the province of British Columbia , Canada . By agreeing to these Terms & Conditions, you submit to the personal jurisdiction of the British Columbia Courts and the Federal Courts situate therein, and waive all objections to placing venue exclusively before them. In any litigation, NetroMedia will be entitled, in addition to any other relief granted to it, to recover reasonable attorney's fees, expenses and costs incurred in connection with the litigation.


NetroMedia’s Services are provided, controlled, and administered by NetroMedia from its offices in British Columbia , Canada . NetroMedia makes no representation or warranty that its Services are appropriate or available for use at any locations outside Canada . If you access NetroMedia’s Services for the purposes of distributing or broadcasting content in jurisdictions outside of Canada , you are responsible for compliance with all applicable laws. By using NetroMedia’s Services, Customer agrees not to broadcast, distribute or export Content in violation of applicable export laws and regulations. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms and Conditions.

 

 

12.  Arbitration

 

The parties agree to submit any dispute arising out of or in connection with this Agreement to binding arbitration in British Columbia before an arbitrator agreed to by both parties and subject to the rules of the Canadian arbitration process. The parties agree that such arbitration will be in lieu of either party's rights to assert any claim, demand or suit in any court action, (provided that either party may elect either binding arbitration or a court action with respect to obtaining injunctive relief to terminate the violation by the other party of such party's proprietary rights, including, without limitation any trade secrets, copyrights or trademarks). Any arbitration shall be final and binding and the parties agree not to contest the enforceability of the arbitrator's order.

 

 

  1. Entire Agreement

 

            These Terms & Conditions, when read together with any Service Level Agreement (together,       “this Agreement”),  contain the entire understanding of the parties with respect to NetroMedia’s            provision of Services and supersede all prior agreements, proposals and communications        between the parties, written or oral, relating to the subject matter of this Agreement. This    Agreement may only be modified in writing duly signed by authorized representatives of both            parties. In no event shall preprinted terms and conditions on a Customer document (purchase          order, confirmations, acceptances) modify or add to the terms of this Agreement.

            NetroMedia may assign its rights under the Agreement, in whole or in part, at any time. In the       event of a breach of any provision of the Agreement by the Customer, NetroMedia’s failure to          insist upon or enforce strict performance of any provision of the Terms and Conditions shall not   constitute a waiver of such right or provision. If any of the terms or conditions contained on this            page are determined to be invalid or unenforceable by a court of competent jurisdiction, then      the remaining terms and conditions will remain in full force and effect, and the invalid or     unenforceable term or condition will be deemed superseded by a valid, enforceable term or    condition that matches the practical effect of the original provision as closely as possible.

 

 

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