NetroMedia Streaming Services Ltd. Terms and Conditions

TERMS AND CONDITIONS: PLEASE READ THIS AGREEMENT CAREFULLY. TO COMPLETE YOUR ORDER FOR THE PRODUCT/AND OR SERVICE YOU'VE REQUESTED, YOU MUST FIRST READ AND ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT ("AGREEMENT"). SUBMISSION OF YOUR ORDER CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS.

WHEREAS:

1. NetroMedia supplies video and audio streaming services; and
   
2. Customer wishes to procure streaming services from NetroMedia in accordance with the terms of this Agreement.
   

NOW THEREFORE, in consideration of the mutual premises and agreements hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto covenant and agree as follows:

1. GOVERNING TERMS. The terms and conditions of this Agreement shall govern the provision of services by NetroMedia to Customer. All proposals, quotations and offers to provide services to Customer made by NetroMedia are made subject to the terms of this Agreement. To the extent that any Customer purchase order or other procurement document contains conflicting, differing or additional terms or conditions, the terms of this Agreement will control and all such conflicting, differing or additional terms shall be deemed rejected by NetroMedia and shall have no effect. In such case, the terms of this Agreement shall be deemed a counter-offer by NetroMedia with acceptance limited to these terms only, and Customer’s acceptance of, or payment for, Services shall conclusively affirm such Customer’s acceptance of the terms of this Agreement without modification.
   
2. PURPOSE OF SITE. NetroMedia Streaming Ltd. (a British Columbia Incorporated Company) herebycalled ("NetroMedia"), is an Internet Service Provider and host of business and personal streaming media and related components to be used to supplement the user's ("Customer's") web site.  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 on NetroMedia's server (that portion of the server allocated for Customer's use is hereafter referred to as "Customer's Allotted Space") 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.


3. SERVICES. Subject to the terms of this Agreement, NetroMedia agrees to provide the services described in the attached Order or Invoice, as as described in Schedule A (“Services”) or as defined in the Services description. Customer agrees to provide all such assistance, including access to Customer’s data, network, equipment and facilities if required, as NetroMedia may reasonably request in connection with the performance of the Services.
   
   
   1. Continuity of Service. NetroMedia makes every effort to keep its service up and running. However, NetroMedia can not and will not guarantee 100% uptime of its service. In no event shall NetroMedia be liable for any disruption of service of a duration of less than four hours. NetroMedia will reimburse customer, on a daily pro-rated basis upon request, any fees paid to NetroMedia for which service was unavailable for a duration of four hours or more in any given day.
   
   
   2. Cancellation of Service by NetroMedia. NetroMedia reserves the right to cancel the Customer's account should the Customer fail to adhere to the terms of this Agreement. Should cancellation of the account occur, NetroMedia will reimburse client any unused fees (prorated daily), after NetroMedia has determined, in its own discretion, that all charges associated with the account have been satisfactorily paid. Upon request of Customer, NetroMedia shall return all Customer materials. NetroMedia reserves the right to withhold fees, up to the total of any charges associated with the account that have not been satisfactorily paid, if legal action is pending against NetroMedia for the misuse of the account or if NetroMedia reasonably believes legal action may be brought against NetroMedia. Under such conditions, NetroMedia may withhold such fees until it has been determined that any legal action brought against NetroMedia has been satisfactorily resolved and all charges have been satisfactorily paid.
   
   
   3. Cancellation of Service by Customer. Customer shall have the right to terminate this Agreement upon thirty (30) days written notice to NetroMedia. NetroMedia shall reimburse client any unused fees (prorated daily), after NetroMedia has determined, in its own discretion, that all charges associated with the account have been satisfactorily paid. Customers who have subscribed to an Annual or Semi-Annual Subscription Package, and who seek to cancel their subscription prior to the expiration of their term, shall have their account recalculated based upon the month-to-month rate and any remaining unused fees will be reimbursed to Customer. Prior to cancellation of service, Customer is responsible for removing their materials from their allotted space on NetroMedia's servers and NetroMedia will not be responsible for storage and preservation of Customer's materials upon receipt of request for cancellation. NetroMediareserves the right to withhold fees, up to the total of any charges associated with the account that have not been satisfactorily paid, if legal action is pending against NetroMedia for the misuse of the account or if NetroMedia reasonably believes legal action may be brought against NetroMedia. Under such conditions, NetroMedia may withhold such fees until it has been determined that any legal action brought against NetroMedia has been satisfactorily resolved and all charges have been satisfactorily paid.
   
   
   4. Linking Services. NetroMedia shall provide Customer with all necessary information to construct, and maintain, a hyperlink from Customer's web site to Customer's Allotted Space on NetroMedia's server. NetroMedia shall use all reasonable commercial efforts to make Customer's Allotted Space available for viewing by third parties 24 hours each day, seven days per week. Customer shall have the responsibility to notify NetroMedia if Customer's hyperlink to NetroMedia's service is inoperable.
   
   
   5. Live Events. Customer agrees not to use the service to host "live events" without the express written permission of NetroMedia and, if such consent is given, only pursuant to the terms and conditions designated in the written permission from NetroMedia. In the event that Customer uses the service to host "live events" without the express written consent of NetroMedia, NetroMedia reserves the right to remove Customer's materials from NetroMedia's service, or otherwise block access by thirdparties to Customer's materials.  
   
   
   6. On Demand Streaming Content. Customer content uploaded to the NetroMedia Streaming Services Ltd. network for "on demand" streaming distribtion is the responsiblity of the customer unless otherwise contractually agreed upon and paid for by the customer. Customer agrees to maintain separate backups of any data other than the backup systems that NetroMedia has in place. NetroMedia shall not be liable for the loss, or modification, of any Customer materials due to any reason. NetroMedia's specifies limits on bandwidth and storage area network utilization for on demand streaming. By accepting this Agreement, Customer agrees to be bound by the service description applicable to it's 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 or for any reason NetroMedia so chooses. Repeat violations of the allotted storage area network and/or bandwidth utilization may subject account to termination. Customer agrees to pay for all bandwidth and/or storage area network usage that exceeds their allotment based on the current charges depicted on this site (and no less than two cents per megabyte in data traffic and five dollars 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.
   
   
   7. Encoding - Conversion of Customer's Media. NetroMedia, upon Customer's request and subject to all payment requirements and any other conditions described herein, shall convert, through its own efforts and those of its sub-contractors, Customer's multimedia materials into a streaming video and/or audio format. Customer shall provide NetroMedia with a copy of the materials to be converted in the format as specified on the Customer's quote submitted to NetroMedia. Customer should not provide NetroMedia with the original of the materials to be converted and, in no instance, shall NetroMedia be liable to Customer for direct damages for loss of, or other damage to, Customer's materials greater than the cost of the medium on which the materials were transmitted to NetroMedia.  Customer will then receive the Quote for the costs of conversion which must be signed and returned to NetroMedia prior to commencement of service. Customers utilizing this service shall be bound by the terms and conditions of both the Encoding Agreement and this Agreement. Customer shall retain all rights, including all trademark, licensing and copyright rights, in both the original multimedia materials as well as the streaming media materials.
   
   
   8. Disk, Network and Bandwidth Utilization. NetroMedia's website specifies limits on bandwidth and disk 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 two cents per megabyte in data traffic and five dollars 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.
   
   
   9. Security of Data. 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.
   
   
   10. RealNetworks. Customer purchasing accounts that use RealNetworks' Streams are using Streams subject to the RealNetworks Licensing Agreement and agree to be bound by RealNetworks Stream License Agreement, a copy of which is available online for review at  http://www.realnetworks.com/about-us/legal/notice_terms.aspx?terms=license+agreement Netromedia shall not be liable for any violation of the RealNetworks Stream Licensing Agreement by Customer and Customer shall indemnify NetroMedia, including all attorney's fees and other costs, if NetroMedia shall be held liable for Customer's violation of the Licensing Agreement by any court of competent jurisdiction. As NetroMedia continuously upgrades our services with RealNetworks, their terms and conditions of their License Agreement are subject to change without notice.  
   
   
   11. Windows Media. Customer purchasing accounts that use Windows Media are using Streams subject to Microsoft's Licensing Agreement and agree to be bound by Microsoft's Stream License Agreement. You may view a copy of the license agreement at www.microsoft.com/windows/windowsmedia/licensing/default.mspxNetroMedia shall not be liable for any violation of the Microsoft Windows Media Stream Licensing Agreement by Customer and Customer shall indemnify NetroMedia, including all attorney's fees and other costs, if NetroMedia shall be held liable for Customer's violation of the Licensing Agreement by any court of competent jurisdiction. As NetroMedia continuously upgrades our services with Microsoft, their terms and conditions of their License Agreement are subject to change without notice.
   
   
   12. QuickTime. Customer purchasing accounts that use QuickTime Streams are using Streams subject to Apple, Inc., and agree to be bound by Apple Inc.'s License Agreement as well as any QuickTime Stream License Agreements that may preceed Apple's License Agreement. You may view a copy of Apple's License agreement at www.apple.com/softwarelicensing/agreements/quicktime.NetroMedia shall not be liable for any violation of the Apple's Stream Licensing Agreement by Customer and Customer shall indemnify NetroMedia, including all attorney's fees and other costs, if NetroMedia shall be held liable for Customer's violation of the Licensing Agreement by any court of competent jurisdiction. As NetroMedia continuously upgrades our services with Apple Inc., and/or Apple Computer, Inc., their terms and conditions of their License Agreement are subject to change without notice.
   
   
   13. Wowza. Customer purchasing accounts that use Wowza Media Software are using Streams subject to Wowza Media Software's Licensing Agreement and agree to be bound by Wowza Media Software's Stream License Agreement. You may view a copy of the license agreement at www.wowza.com/resources/WowzaMediaSoftware-3.6_LicenseAgreement.pdfNetroMedia shall not be liable for any violation of the Wowza Media Software Stream Licensing Agreement by Customer and Customer shall indemnify NetroMedia, including all attorney's fees and other costs, if NetroMedia shall be held liable for Customer's violation of the Licensing Agreement by any court of competent jurisdiction. As NetroMedia continuously upgrades our services with Wowza Media, their terms and conditions of their License Agreement are subject to change without notice.
   
   
   14. No Other Warranties. NETROMEDIA WARRANTS THAT THE SERVICE WILL OPERATE SUBSTANTIALLY IN CONFORMANCE WITH THE SPECIFICATIONS DEPICTED IN THEIR PACKAGE. TO THE EXTENT PERMITTED BY LAW, NETROMEDIA DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. THE DURATION OF ANY STATUTORILY-REQUIRED WARRANTY PERIOD SHALL BE LIMITED TO THE TERM OF THE LIMITED WARRANTY.
   
   
   15. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL NETROMEDIA BE LIABLE TO CUSTOMER FOR DIRECT DAMAGES GREATER THAN THE TOTAL OF ONE MONTH'S FEE CHARGED BY NETROMEDIA 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 NETROMEDIA'S REMOVAL OF CUSTOMER'S MATERIAL.
   
   
   
   
4. PURPOSE OF SITE. NetroMedia Streaming Ltd. (a British Columbia Incorporated Company) herebycalled ("NetroMedia"), is an Internet Service Provider and host of business and personal streaming media and related components to be used to supplement the user's ("Customer's") web site.  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 on NetroMedia's server (that portion of the server allocated for Customer's use is hereafter referred to as "Customer's Allotted Space") 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.


5. LENGTH OF AGREEMENT. The term of this Agreement shall be set by an adjoining contract stipulation. Minimum contract and service length shall be month-to-month or 31 days whichever is greater. It shall commence from the Effective Date of the Agreement or for the specified term of service as identified by the "Package" that Customer subscribes to. For purposes of this Agreement, the "Effective Date" shall be the date on which NetroMedia recieves first full payment for client submitted order for service. Unless otherwise terminated in accordance with the terms hereof, shall continue for the initial term set out in Schedule A Thereafter, this Agreement shall automatically renew for successive one (1) year periods unless either party provides written notice of its intention not to renew, not less than 90 days prior to the expiry of the then-current term. For the purposes of this Agreement, the initial term and any renewal term(s) shall be collectively referred to as the “Term”.


6. ORDERS. Customer shall order the Services by approving a written or electronic purchase order signed (or sent in the case of an electronic purchase order) by Customer’s authorized representative. Any additional terms and conditions contained in such order are not binding upon NetroMedia. All orders are subject to approval and acceptance by NetroMedia. Any such acceptance is expressly subject to Customer’s agreement to accept the terms of this Agreement and to exclude all other terms.
   
7. PRICES. Estimated fees (“Fees”) for the Services are set forth in in the attached Order or Invoice, as as described in Schedule A (“Services”) or as defined in the Services description. Fees exclude taxes, duties and levies of any kind. Customer will pay any applicable taxes, duties and levies (and any related interest or penalty), however designated, imposed with respect to the supply of the Services to Customer, other than taxes on NetroMedia’s income. Unless otherwise specified, all prices are stated in United States dollars.
   
   
   1. Overage, as defined as any amount over any regular or reoccurring service of which the client has consumed more than the set and agreed to unit consumption and prepaid amount, will be set at a higher per unit value. This pricing is set at the time of the order or service agreement creation.
   
   
8. PAYMENT. Fees are payable in advance, and are due upon receipt of invoice. Billing will occur annually on the anniversary of the Service Commencement Date. Payment options are credit card (Visa, MC, and Amex), or wire transfer. Bank charges for wire transfers will be at the expense of the Customer. Except to the extent required by law, all amounts payable to NetroMedia hereunder shall be paid in full without any deduction or withholding. If at any time the financial condition of the Customer so warrants, or if Customer fails to make any payment(s) when due, or if Customer defaults on any obligation to NetroMedia, NetroMedia may at its discretion and without liability alter the terms of payment, delay or suspend delivery of any Service pending receipt of payment in full, and/or pursue any other remedies available under this Agreement, at law or in equity. If NetroMedia suspends the delivery of the Service, a re-connection fee may apply.
   
   
   1. Overage, as defined as any amount over any regular or reoccurring service of which the client has consumed more than the set and agreed to unit consumption and prepaid amount, may be invoiced and payment processed at irregular intervals if the overage amount exceeds the prepaid unit count by 100% or the value of the overage amount exceeds 100% of the prepaid invoice amount.
      
   2. Price and Payment. Customer shall pay NetroMedia monthly recurring fees, as indicated at www.netromedia.com/pricing which include charges for use and occupancy of Customer's Allotted Capacity. Setup fee, if applicable, plus first month monthly charges are due before service begins for Customers who elect to pay for their accounts on a monthly basis. Customers electing to pay semi-annual or annually must submit payment before service begins. Amounts past due by 45 days are subject to NetroMedia's standard late payment fee of 5% of the standard monthly rate for that package. Amounts past due by 90 days are subject to immediate closure. NetroMedia reserves the right to increase prices upon the expiration of the Customer's contracted term. Price increases shall be posted on NetroMedia's web site 30 days prior to taking effect. This Agreement will automatically renew on a month-to-month basis at the month-to-month rate in effect at the time of the renewal unless canceled in writing or modified in writing by the Customer prior to the renewal date. Customer will receive an invoice for charges and payment is due upon receipt of invoice.
   
   
   3. Taxes. In the event that they are applicable, Customer shall be solely responsible for the payment of all sales, use and similar taxes relating to their use of NetroMedia's services.
   
   
   
   
9. EQUIPMENT. Customer is solely responsible for obtaining, maintaining and paying for all telecommunications, computer hardware and other equipment and services required to access and use the Services. Use of the Services is at Customer’s own risk. NetroMedia assumes no responsibility and shall not be liable for any damage to, or viruses that may infect, Customer’s or its customers’ software, computer equipment or other property as a result of Customer’s or its customers’ access to or use of the Services, or from downloading any materials, data, text, images, video or audio through the use of the Services.
   
10. CONTENT
    
    
    1. Warranty. Customer warrants that it is the owner and/or that it possesses all necessary rights and licenses in and to all content (“Customer Content”) uploaded to, hosted on, or streamed through NetroMedia’s network and systems in connection the Services. Without limiting the generality of the foregoing, Customer shall be responsible for ensuring that Customer Content complies with all applicable licensing requirements, and for the payment of any applicable contractual music licensing fees, including, without limitation, all SOCAN, BMI, ASCAP, CISAC and SESAC licensing requirements and fees, as well as any requirements and fees imposed under applicable legislation.
       
    2. Integrity. Customer shall be solely responsible for ensuring that Customer Content and any other content streamed, processed or stored as a result of Customer’s use of the Services complies with the terms of this Agreement including, but limited to, the restrictions set out in Section 9 (“Prohibited Users”), below. Customer acknowledges and agrees that NetroMedia has the right (but not the obligation) to monitor or view Customer Content uploaded by Customer onto NetroMedia’s service, as well as any Customer 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 or all of the Customer Content from NetroMedia’s service and to remove any and/or all of the Customer Content from NetroMedia’s servers if that Customer Content is, in NetroMedia’s sole discretion, inconsistent with the terms or spirit of this Agreement. In no event will NetroMedia be liable for the removal of Customer Content.
       
    3. NetroMedia Not Responsible for Content. Customer expressly acknowledges and agrees that NetroMedia is not responsible, and shall have no liability under any circumstances for any content uploaded to NetroMedia’s site by any party other than NetroMedia. NetroMedia is a distributor, and not a publisher, of Customer Content and any content supplied by any third parties, including Customer’s customers. Customer agrees that NetroMedia does not have editorial control over any such Customer Content or third party content. Advice, opinions, representations, statements, comments, ratings, criticisms, or other information or content expressed or made available by third parties are those of the respective third party author and not of NetroMedia, and NetroMedia does not endorse and expressly disclaims any liability in respect of such third party content. As between Customer and NetroMedia, Customer is solely responsible for the accuracy, completeness, legitimacy and legality of any third party content, and including the use or reliance by any party of or on such third party content.
       
    4. Content of Customer's Materials. NetroMedia does not actively monitor the Customer's material nor does NetroMedia exercise any editorial control over the content of any material that the Customer uploads into NetroMedia's service. However, NetroMedia reserves the right to remove any and/or all of the Customer's material from NetroMedia's service that are, in NetroMedia's discretion, potentially illegal, a violation of Trademark and or Copyright, or may subject NetroMedia to liability, or violate the acceptable use policy stated below in this Agreement. Upon removal of the material, NetroMedia shall notify Customer of the removal of the materials, as well as the reason for removal. In no instance shall NetroMedia be liable for the removal of the materials.
    
    
    5. Modification of Media. In the event Customer wishes to modify, or otherwise change, the media on their Allotted Space, Customer shall have the privilige of doing so as long as compliance with the Terms and Conditions of this Agreement are met, and Customer does not exceed their allotted disk space and data-traffic. Customers wishing to modify theirallotted package disk space and/or data-traffic should submit a request for modification to support@netromedia.com
    
    
    6. Security. NetroMedia shall use all reasonable efforts to ensure the integrity and security of Customer Content, including the use of automated tape back-up systems, secure servers, and restricted access to back office systems. However, no procedure can guarantee complete and total security and integrity of Customer Content. As such, 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 Content or other 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 data recovery, unless the missing or defective media is the result of NetroMedia’s acts or omissions, or unless Customer has purchased backup services as set out in Schedule A.
       
    7. Overage, is defined as any amount over any regular or reoccurring service of which the client has consumed more than the set and agreed to unit consumption and prepaid amount. NetroMedia may impose limits on bandwidth and Storage Area Network (“SAN”) utilization. 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 result in the termination of this Agreement. 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 100% or more but cannot 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.
       
    
    
11. PROHIBITED USES
    
    
    1. Prohibited Uses. The Services may be used only for lawful purposes, and all use by Customer must comply with the terms of this Agreement. Misuse or unauthorized use of the Services, NetroMedia’s network and systems, or of any other service, information, images or other materials supplied by NetroMedia is strictly prohibited. Without limiting the generality of the foregoing, NetroMedia specifically prohibits the use of the Services, and NetroMedia’s servers, networks, websites and systems, for any of the following purposes:
       
       
       1. engaging in conduct that would constitute a criminal or quasi-criminal offence, that would give rise to civil liability, or that would otherwise violate any applicable local, provincial, state, federal or international law or accepted Internet protocol
          
       2. posting or uploading information that is inaccurate, incomplete, misleading, false or libelous
          
       3. communicating, transmitting, uploading or posting material that is protected by copyright, trade mark or trade secret, or which infringes upon the intellectual property rights of any other party, unless permission to use the material has first been obtained
          
       4. communicating, transmitting, uploading or posting material that infringes the privacy rights of any other party, unless permission to so use the material has first been obtained
          
       5. communicating, transmitting, uploading or posting material that it obscene, vulgar, abusive, defamatory, threatening, racist, sexist or otherwise objectionable
          
       6. attempting to interfere with NetroMedia’s data, servers, network or network security
          
       7. advertising, soliciting or otherwise promoting the sale or other distribution of products or services, including contests, sweepstakes, barter, advertising, and pyramid schemes
          
       8. filing, undertaking or pursuing any claims, proceedings, suits or actions against NetroMedia, its officers, directors, employees or representatives
          
       9. using or attempting to use the Services or NetroMedia’s network to gain unauthorized access to any other party’s data or network
          
       10. or otherwise using the Services or NetroMedia’s network in a manner that could, in NetroMedia’s opinion, adversely affect the ability of other users to use NetroMedia’s services or the Internet, including the posting or transmitting of information or data containing (or that will contain) any disabling mechanism, including clocks, timers, counters, worms, viruses, Trojan horses, software locks, drop dead devices, time bombs or other disruptive components, codes, designs, routines or instructions.
       
       
    2. Acceptable Use. This Agreement is 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 service, NetroMedia reserves the right to terminate the service without notice. NetroMedia shall make reasonable efforts to advise Customer of the inappropriate behavior and offer any corrective action necessary. NetroMedia reserves the right to immediately terminate its service to Customer for any flagrant or repeat violations of this Agreement. Incidents that may cause the account to be terminated include, but are not limited to:
       
       
       1. Harassment: using the service to threaten or harass.
          
       2. Using the service for any purpose other than which it is intended.
          
       3. Attempting to impersonate any person, using forged headers or other identifying information in a defamatory way.
          
       4. Violation of Trademark and/or Copyrighted material. Upon receipt of a legal notice to "Cease" hosting of material, NetroMedia will remove all related material until Customer has satisfactorily resolved the dispute.
          
       5. Uploading any programs that may cause a disruption to the service.
          
       6. Untimely payment of any and all amounts due.
          
       7. Any action that violates the laws of applicable local, state, federal or international governmental bodies.
          
       8. Sharing the account with anyone or re-selling the service without permission.
       
       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 or other illegal activity. NetroMedia reserves the right to monitor or view material uploaded by Customer onto NetroMedia's service at any time for the purpose of ensuring compliance with this Agreement.
    
    
    3. NetroMedia’s Rights. NetroMedia will cooperate with any and all legal authorities in investigating claims of illegal activity, including, but not limited to the illegal transfer or use of copyrighted material. Customer acknowledges and agrees that NetroMedia may preserve Customer Content and may also disclose Customer Content as well as information contained in Customer's profiles, folders, transmissions, communications, passwords, or any other information NetroMedia considers applicable if requested to do so by law enforcement authorities, 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 this Agreement; to respond to claims that any Customer Content violates the rights of third-parties; or to protect the rights, property, or security of NetroMedia, its users and/or the public.
       
    4. Storage Outside of Canada. Customer acknowledges that NetroMedia stores data on servers located in jurisdictions outside of Canada, including the United States. As such, stored data including Customer Content, may be subject to the laws of the host jurisdiction including laws relating to export, disclosure, search and seizure.
       
    
    
12. CUSTOMER WARRANTIES. Customer represents and warrants to NetroMedia as follows:
    
    
    1. If a corporation, it is a legal entity in good standing, and that it is duly authorized to carry on business, and to enter into and perform the obligations set forth in this Agreement;
       
    2. If an individual, he/she is 19 years of age or older;
       
    3. It and its affiliates are not under any obligation or restriction, nor is it involved in any legal action, which would in any way interfere or be inconsistent with the performance of its obligations under this Agreement;
       
    4. No additional licenses, permits, permissions or other authorizations are required for its performance, or for the exercise by NetroMedia of any rights or licenses granted to it by Customer;
       
    5. It maintains, and will continue to maintain throughout the term of this Agreement, a high degree of financial integrity, service excellence and ethical conduct in its business operations;
       
    6. All product, service, business and financial information submitted by Customer to NetroMedia prior to and during the Term is complete and accurate, and Customer shall ensure the continued accuracy of the information;
       
    7. Customer’s business, and Customer’s sale of any products or services through the NetroMedia site, shall be in compliance with all applicable laws, rules and regulations;
       
    8. Neither the products and services offered by Customer, nor the Customer Content will contain any material that is libelous, obscene, objectionable, discriminatory, illegal, infringing in any jurisdiction in which it is intended to be uploaded, broadcast or distributed, nor will they violate any party’s privacy rights; and
       
    9. It is the owner and/or that it possesses all necessary rights and licenses in and to the Customer Content for the grant of the rights granted to NetroMedia in this Agreement, including the right to process, encode, stream, transmit and store the Customer Content.
       
    
    
13. CUSTOMER INDEMNITIES. Customer shall defend, indemnify and hold NetroMedia, its officers, directors, employees, agents, successors, assigns, licensors and third party service providers harmless from and against all losses, costs, damages, claims and other liabilities of any kind arising directly or indirectly from or in connection with:
    
    
    1. Customer's breach of any of its obligations, representations or warranties under this Agreement;
       
    2. the infringement by any Customer Content of NetroMedia’s or any third party’s intellectual property rights;
       
    3. the use of the Services other than as authorized under this Agreement;
       
    4. NetroMedia’s storage, streaming, encoding, processing or other use of the Customer Content in accordance with the terms of this Agreement; or
       
    5. any combination of NetroMedia and its licensors’ technology with any data, product, technology or service of Customer or of any third party where a claim would have been avoided in the absence of such combination.
       
    
    
14. NETROMEDIA INTELLECTUAL PROPERTY
    
    
    1. Intellectual Property. Customer acknowledges that NetroMedia has developed and uses valuable technical and non-technical information, designs, patents, trade secrets, know-how and the like in development and delivery of the Services, and all systems, websites, documentation and other associated materials in any form. Customer acknowledges and agrees that, except for the limited rights to use granted to Customer under this Agreement, all rights, title and interest in and to any new or pre-existing NetroMedia systems, websites, materials, designs, models, methodology, information, documentation, technology, know-how, patents, copyrights, trade secrets and other intellectual and industrial property, including any modifications or derivative works thereof, shall be and remain vested in NetroMedia and its third party suppliers, as appropriate. Customer warrants that it shall not, and shall prevent others from copying,translating, modifying, creating derivative works, reverse engineering, decompiling, encumbering or otherwise using any NetroMedia intellectual property except as specifically anticipated by this Agreement.
       
    2. Trade-marks. Customer recognizes and acknowledges the great value of the goodwill associated with NetroMedia’s name and trademarks, and the identification of NetroMedia’s products and services therewith. Customer agrees that it obtains no rights, title or interest in or to any of the trademarks, trade names, logos, service marks or other markings belonging to NetroMedia or its suppliers. Customer will not obscure, effect or permit the removal or alteration of any patent numbers, trade names or marks, copyright or other proprietary rights markings, warning labels, serial numbers, or the like affixed to or included in or on any websites or materials supplied by NetroMedia.
       
    3. Liability for Infringement. If any claim, suit or proceeding is brought or likely to be brought against Customer based upon a claim alleging infringement by the Services of any Canadian or United States patent or copyright, Customer agrees to permit NetroMedia, at its option and expense, to either:
       
       
       1. procure for Customer the right to continue using the Services;
          
       2. modify the Services so that they become non-infringing; or,
          
       3. if neither of the foregoing alternatives is reasonably available, discontinue the Services and refund to Customer a prorated portion of the annual fee prepaid by Customer to NetroMedia for the allegedly infringing Service.
          
       
       Notwithstanding the foregoing, NetroMedia shall have no liability for, and Customer will indemnify NetroMedia against, any claim based upon: (a) alteration or modification of the Services by Customer or any third party; or (b) NetroMedia’s compliance with Customer’s specifications or instructions. THE FOREGOING STATES THE ENTIRE OBLIGATION OF NETROMEDIA, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO THE INFRINGEMENT OF PROPRIETARY RIGHTS. THE FOREGOING IS GIVEN TO CUSTOMER SOLELY FOR ITS BENEFIT AND IN LIEU OF, AND NETROMEDIA DISCLAIMS, ALL WARRANTIES OF NON-INFRINGEMENT WITH RESPECT TO THE SERVICES.
       
    4. NetroMedia, the DMCA and DMCA Takedowns - full agreement listed here an abridged version is included below for brevity and ease of finding specific action instructions related to processing DMCA Takedowns.
       
       
       
       1. NetroMedia follows the process knows as the DMCA Takedown as prescribed in US Copyright Law.Upon notice, we will remove or request that a third party remove Content from the NetroMedia Network that infringes the copyright of others and to the extent we are able to do so we will disable access to our Service by anyone who repeatedly infringes the intellectual property rights of others. NetroMedia processes claims of copyright infringement in accordance with the Digital Millennium Copyright Act of 1998, 17 U.S.C. § 512 et. seq (the "DMCA"). The DMCA addresses the rights and obligations of owners of copyrighted material who believe that their rights under U.S. copyright law have been infringed on the Internet, as well as the rights and obligations of Internet Service Providers on whose servers infringing material may reside. However NetroMedia will also process claims of copyright infringement in accordance with the Digital Millennium Copyright Act of 1998, 17 U.S.C. § 512 et. seq (the "DMCA") for owners of copyrighted material who believe their rights have been infringed in their jurisdiction, the jurisdiction of the infringing website owner. The application of US Copyright Law cannot apply legally but the process of conducting a takedown request will be the similar.
          
          Upon receipt of written notification provided in the manner required by 17 U.S.C. § 512, or through the approved online application below we will:
          
          
          
          1. Act expeditiously to remove, or disable access to, the Content that is claimed to be infringing or to be the subject of infringing activity;
             Forward the written notification to the alleged infringer; and
             
          2. Take reasonable steps to promptly notify the Content provider that we have removed or disabled access to the allegedly infringing Content.
             
          
          
       2. If you believe that your work has been copied, adapted, reproduced, or exhibited on a Website hosted by NetroMedia in a way that constitutes copyright infringement, or if you believe that your work has been rebroadcast, redistributed, re-streamed, encoded or transcoded or otherwise reproduced in a way that violates your intellectual property rights, and you would like NetroMedia to remove the allegedly infringing Content from the NetroMedia Hosting or Streaming Network, you must provide written notice of the claimed infringing activity or complete the approved online application below. Your notice must include substantially the following information:
          
          
          
          1. An electronic or physical signature of the owner or of the person authorized to act on behalf of the owner of the copyright interest;
             
          2. Identification of the copyrighted work (or works) that you claim has been infringed;
             
          3. A description of the material that you claim is infringing, and the location where the original or an authorized copy of the copyrighted work exists (for example, the URL of the page of the web site where it is lawfully posted; the name, edition and pages of a book from which an excerpt was copied, etc.);
             
          4. A clear description of where the infringing material is located on the web site and / or NetroMedia network, including as applicable its URL, so that we can locate the material;
             
          5. Your name
             
          6. Your address
             
          7. Your telephone number
             
          8. Your e-mail address;
             
          9. A statement that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
             
          10. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
              
          
          NOTE: THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR NOTIFYING OUR DESIGNATED CONTACT OR AGENT THAT YOUR COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED. DO NOT SEND ANY INQUIRIES UNRELATED TO COPYRIGHT INFRINGEMENT (E.G., REQUESTS FOR TECHNICAL ASSISTANCE OR CUSTOMER SERVICE, REPORTS OR E-MAIL ABUSE, ETC.) TO THE CONTACT LISTED BELOW. YOU WILL NOT RECEIVE A RESPONSE IF SENT TO THAT CONTACT. WE CAUTION YOU THAT UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO HEAVY CIVIL PENALTIES. THESE INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS FEES INCURRED BY US, BY ANY COPYRIGHT OWNER, OR BY ANY COPYRIGHT OWNER'S LICENSEE THAT IS INJURED AS A RESULT OF OUR RELYING UPON YOUR MISREPRESENTATION. YOU MAY ALSO BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY.
          
          Designation of Agent to Receive Notification of Claimed Infringement
          
          NetroMedia's designated agent to receive notification of claimed infringement is:
          
          

          
          NetroMedia Streaming Services Ltd.
          
          Attn: Legal Department
          
          765 Market Street
          
          Victoria, BC, V8T 0B4
          
          Canada
          
          Fax: (250) 477-5141
          
          E-mail: processing@netromedia.com
          
          

          
          
       3. Counter Notification
          
          If you are a customer who has received notice from us that your stream has been shut down or material has been removed from your Web site following our receipt of a notice of claimed copyright infringement, and you are the owner of the allegedly infringing material or are otherwise authorized to use such material (including 'fair use'), you may provide written counter notification to our designated agent. Your counter notification must include substantially the following information:
          
          
          
          1. Your physical or electronic signature;
             
          2. Identification of the allegedly infringing material including the location at which the material appeared before it was removed or access to it was disabled;
             
          3. A statement, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification;
             
          4. Your name
             
          5. Your address
             
          6. Your telephone number
             
          7. Your e-mail address;
             
          8. A statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which you are located, or if your address is outside of the United States, of any judicial district in which NetroMedia does business, and that you will accept service of process from the complaining party or its agent.
             
          
          Upon receipt of written counter notification provided in the manner required by 17 U.S.C. § 512, we will:
          
          
          
          1. Promptly provide the person who provided the notification with a copy of the counter notification, and inform that person that we will replace the removed material or cease disabling access to it in 10 business days; and
             
          2. Replace the removed material and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notification, unless our designated agent first receives notice from the person who submitted the notification that such person has filed an action seeking a court order to restrain the Customer from engaging in infringing activity relating to the material on NetroMedia's system or network.
             
          
          Please note: We cannot and do not judge the merits of your claim (or counterclaim).
          
          Accordingly, we will not remove, or disable access to, any allegedly infringing material, nor restore any material that has been so removed, except according to the procedure set forth herein.
          
          Designation of Agent to Receive Notification of Counter Claim Notification
          
          NetroMedia's designated agent to receive notification of Counter claim Notification is:
          
          

          
          NetroMedia Streaming Services Ltd.
          
          Attn: Legal Department
          
          765 Market Street
          
          Victoria, BC, V8T 0B4
          
          Canada
          
          Fax: (250) 477-5141
          
          E-mail: processing@netromedia.com
          
          

          
          
       
       
    5. Service Fees; Repeat Infringers
       
       Customers who have material removed in response to a notification of claimed infringement, and who do not assert that their use of the material removed was authorized (as evidenced by the filing of a counter notification), will be assessed a service fee of $100.00 per incident. We may, at our discretion, terminate the Service Agreement of any customer in connection with whose account we receive more than one notification of claimed infringement (to which the customer does not provide a counter-notification) in any twelve-month period. We will terminate the Service Agreement of any customer in connection with whose account we receive three notifications of claimed infringement to which the customer does not provide counter-notifications in any twelve month period.
    
    
    
    
15. LIMITED WARRANTY. NetroMedia represents and warrants to Customer that (a) the Services will be supplied in a professional manner in accordance with prevailing industry standards; and (b) NetroMedia shall comply with all applicable laws in the course of performing the Services. Customer's use of NetroMedia’s services is at Customer's sole risk. Except as expressly provided in this Section 13, to the maximum extent permitted by applicable law, NetroMedia services are provided on an "as is" basis and "as available" basis. In the event of a breach of this warranty, NetroMedia will, at NetroMedia’s option and expense either (a) use all reasonable efforts to rectify the non-conformity, or (b) refund the fees paid by Customer for that portion of the Services that fails to conform to the warranties set out above. THESE WARRANTIES ARE THE ONLY WARRANTIES PROVIDED BY NETROMEDIA. NETROMEDIA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR REPRESENTATIONS OF NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR USE OR PURPOSE, THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR THAT THEY WILL BE UNITERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT ERRORS OR NON-CONFORMITIES WILL BE RECTIFIED, OR ANY WARRANTY OTHERWISE ARISING OUT OF ANY PROPOSAL, SPECIFICATION, OR SAMPLE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
    
16. CONFIDENTIAL INFORMATION
    
    
    
    1. Confidential Information. Each party agrees that this Agreement, and all data, software code, inventions, algorithms, know-how, methodology and ideas, and all other business, strategic, commercial, financial, technical and employee information that it obtains from the other party, are the confidential property of the disclosing party (“Confidential Information’’). Except as permitted herein, the receiving party will hold in confidence and not use the disclosing party’s Confidential Information for any purpose other than the purposes anticipated by this Agreement. Further, a receiving party shall not disclose the disclosing party’s Confidential Information other than to those of its employees, contractors and advisors having a “need to know”, but only after they have been advised of its confidential and proprietary nature and have agreed to protect same on terms no less onerous than the terms set out in this Section
       
    2. Exceptions. The receiving party shall not be obligated under this Section 15 with respect to information that the receiving party can document:
       
       
       1. is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents; or
          
       2. is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information; or
          
       3. was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or
          
       4. was independently developed by employees, subcontractors or consultants of the receiving party who had no use of the disclosing party’s Confidential Information.
          
       
       If a receiving party is required to disclose any of the disclosing party’s Confidential Information pursuant to any applicable laws, rules or regulations, or the direction of a statutory or regulatory authority or stock exchange, or order of a relevant court of law, the receiving party shall
       
       
       1. unless prohibited by law, endeavor to provide the disclosing party with prompt written notice of such request or requirement so that the disclosing party may seek a protective order or such other appropriate remedy as the disclosing party may deem appropriate, and
          
       2. disclose only that portion of the Confidential Information which it is required to disclose, and then only to the extent required.
          
       
       
    3. Other. Except as otherwise specifically permitted by this Agreement, upon the expiration or termination of this agreement, all Confidential Information (including any copies) will, at the option of the disclosing party, be deleted, destroyed or returned to the disclosing party, and the receiving party will make no further use of such materials. The parties agree that monetary damages may not be an adequate remedy if this Section 14 is breached and, therefore, either party may, in addition to any other legal or equitable remedies, seek an injunction or other equitable relief against such breach or threatened breach without the necessity of posting any bond or surety.
       
    
    
17. TERMINATION
    
    
    1. Breach. If Customer breaches a material provision of this Agreement, NetroMedia may terminate this Agreement upon thirty (30) days’ prior written notice specifying the breach, unless the breach is cured within the notice period.
       
    2. Bankruptcy/Insolvency. Either party shall have the right to immediately terminate this Agreement upon written notice to the other party if the other party:
       
       
       1. admits in writing its inability to pay its debts generally as they become due
          
       2. commits an act of bankruptcy
          
       3. is the subject of a petition or assignment in bankruptcy under applicable laws, that is not discharged within twenty (20) days
          
       4. files a notice of intention to make a proposal or otherwise seeks a reorganization under applicable bankruptcy laws or any other similar law or statute of any relevant jurisdiction
          
       5. makes an assignment for its creditors
          
       6. consents to the appointment of receiver or receiver-manager of the whole or any part of its business
          
       7. enters into an arrangement with or for the general benefit of its creditors.
          
       
       
    3. Survival. Upon the termination or expiry of this Agreement for any reason, Customer shall promptly pay NetroMedia all unpaid and undisputed amounts due for Services completed as of the effective date of termination or expiry. The provisions of Sections 6 PAYMENT, 8 CONTENT, 10 10. CUSTOMER WARRANTIES, 11 11. CUSTOMER INDEMNITIES, 12 12. NETROMEDIA INTELLECTUAL PROPERTY, 14 14. CONFIDENTIAL INFORMATION, 15.3 15.3 Survival., 17 17. LIMITATION OF LIABILITY and 18.1 GENERAL .1 shall survive the expiration or termination of this Agreement for any reason. Termination of this Agreement will not affect the right of either party to pursue any other remedies available at law or in equity, including injunctive relief.
       
    
    
18. FORCE MAJEURE. NetroMedia will not be liable for any failure to perform its obligations to Customer due to circumstances or causes beyond NetroMedia’s reasonable control (“Force Majeure”), including, but not limited to, acts of God, war, terrorism, riot, embargoes, acts of civil or military authorities, failure or delay in delivery by NetroMedia’s suppliers, delay by Customer, fire, flood, accident, strikes, or inability to secure transportation, facilities, fuel, energy, labor, or materials. In the event of Force Majeure, where applicable NetroMedia’s time for delivery or other performance will be extended for a period equal to the duration of the delay caused thereby.
    
19. LIMITATION OF LIABILITY.
    
    
    1. LIMITATION.NETROMEDIA’S, ITS OFFICERS’, DIRECTORS’, EMPLOYEES’ AND AGENTS’ TOTAL COLLECTIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SERVICES SOLD OR DELIVERED TO CUSTOMER OR THE NON-PERFORMANCE OF NETROMEDIA’S OBLIGATIONS TO CUSTOMER SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES CAUSED THEREBY, NOT TO EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO NETROMEDIA FOR THE SERVICES. IN NO EVENT SHALL NETROMEDIA HAVE ANY LIABILITY TO CUSTOMER OR TO ANY OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY NATURE (INCLUDING WITHOUT LIMITATION, LOST REVENUES, LOST PROFITS, DELAY, LOST MARKETING OR PROMOTIONAL EXPENSES OR LOSS OF USE) ARISING OUT OF, RESULTING FROM, OR IN ANY WAY RELATING TO ANY SERVICES SOLD OR LICENSED BY NETROMEDIA TO CUSTOMER OR ANY NON-PERFORMANCE OF NETROMEDIA’S OBLIGATIONS TO CUSTOMER, EVEN IF NETROMEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY FOR ALL CLAIMS, INCLUDING WITHOUT LIMITATION, CONTRACT, WARRANTY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
       
    2. Acknowledgment.Customer expressly acknowledges that NetroMedia has entered into this Agreement, and has and will make the Services available in reliance upon the limitations and exclusions of liability and the disclaimers set forth in this Agreement, and that the same form an essential basis of the bargain between the customer and NetroMedia. Customer further expressly agrees that the limitations and exclusions of liability and the disclaimers set forth in this Agreement 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.
       
    3. Applicability.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.
       
    
    
20. GENERAL
    
    
    1. This Agreement shall be governed by the laws of the Province of British Columbia and the laws of Canada applicable therein, as if performed wholly within that Province but without giving effect to conflicts of laws principles. Any litigation between the parties arising out of or relating to this Agreement will be brought exclusively in the courts of British Columbia. Customer hereby waives any objection to the exercise by the courts located within the Province of British Columbia of personal jurisdiction over Customer, and to venue in such courts.
       
    2. Arbitration. The parties agree to submit any dispute arising out of or in connection with this Agreement to binding arbitration in he Province of British Columbia, Canada before an arbitrator agreed to by both parties and subject to the rules of the he Province of British Columbia Arbitration Act. 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.
    
    
    3. All rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. Failure by either party to enforce any term will not be deemed a waiver of future enforcement of that or any other term. The terms of this Agreement are declared to be severable and in the event any provision of this Agreement is deemed unenforceable, it shall be severed and the remainder of this Agreement shall be given the fullest effect permitted by law.
       
    4. Customer may not assign any rights or obligations hereunder without the prior written approval of NetroMedia, and any attempt to assign any rights, duties, or obligations hereunder without NetroMedia’s written consent will be void. NetroMedia may assign all or any part of its rights or obligations without Customer’s consent. The provisions of this Agreement will enure to the benefit of and be binding upon the parties and their respective heirs, executors, successors, permitted assigns, and personal representatives.
       
    5. Any consent by a party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute consent to or a waiver of any other, different or subsequent breach.
       
    6. The Services are provided on a non-exclusive basis, and nothing contained herein shall prevent or restrict NetroMedia from providing the same or similar services to any other party, either during the term of this Agreement or at any time thereafter.
       
    7. The parties are independent contractors. Neither NetroMedia’s nor Customer’s officers, employees, contractors or agents shall be deemed to be the officers, employees, contractors or agents of the other, and NetroMedia shall not be subject to the day to day supervision or control of Customer. Nothing in this Agreement shall be construed so as to create any agency, joint venture or partnership between the parties, and neither NetroMedia nor Customer shall represent that its relationship with respect to the other party is other than that of an independent contractor.
       
    8. Any notice, communication or statement required or permitted to be given hereunder shall be in writing and deemed to have been sufficiently given when delivered in person, or by facsimile (with confirmation of facsimile transmission), email, or by certified mail, return receipt requested and postage prepaid, to the chief executive of the other party at the address set out at the head of this Agreement, or such other persons and/or addresses as either party may advise the other from time to time in accordance with this provision.
       
    9. 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 or other illegal activity. NetroMedia reserves the right to monitor or view material uploaded by Customer onto NetroMedia's service at any time for the purpose of ensuring compliance with this Agreement.
       
    10. Amendment of Agreement. NetroMedia may amend this Agreement from time to time on an as-needed basis by placing an update of this Agreement on-line at NetroMedia's web site at this location or at any other location designated at said site. Any changes to this Agreement take effect upon the renewal date of the Agreement. Therefore, it is Customer's responsibility to monitor this Agreement online. If Customer does not agree with the terms and conditions of NetroMedia, Customer must immediately cease the use of NetroMedia's service.
    
    
    
    

This Agreement constitutes the entire agreement and understanding of the parties relating to the provision of Services by NetroMedia to Customer, and supersedes all prior and contemporaneous oral and written agreements and understandings between the parties.

The entire content of NetroMedia's Service is copyrighted, and all rights are reserved.

If you have questions or comments, you can contact us at legal@netromedia.com or FAX (250) 477-5141. We can also be reached at: NetroMedia Streaming 765 Market Street Victoria, British Columbia V8T 1Z4, Canada