PlayStream Terms & Conditions

1. Terms and Conditions - General

PLAYSTREAM 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.

Section 1.1. Purpose of Site. PlayStream, Inc, (a Washington Limited Liability Company) hereby called ("PlayStream"), 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. PlayStream'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 PlayStream's server (that portion of the server allocate 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. PlayStream may provide any other services, as necessary, for the operation of its business.

Section 1.2. Length of Agreement. Customer agrees the use of the Service is subject to PlayStream's "Term of Agreement Policy."

Section 1.3. PlayStream Written Agreement.  For special services, or customized solutions, a written PlayStream Written Agreement may accompany these Terms and Conditions.  If such document accompanies these Terms and Conditions, the terms of the written PlayStream Written Agreement shall override any inconsistencies or contradictory Terms and Conditions that may arise between the two agreements.

Section 1.4. Streaming - Space Support and Maintenance. PlayStream agrees, subject to the terms of this Agreement, to allow Customer to use and occupy Customer's Allotted Space on PlayStream's servers. Subject to the terms of this Agreement, PlayStream agrees to provide Customer with those support services necessary to allow third persons to access and view Customer's media on Customer's Allotted Space as per the terms of this Agreement.

Section 1.5. Linking Services. PlayStream shall provide Customer with all necessary information to construct, and maintain, a hyperlink from Customer's web site to Customer's Allotted Space on PlayStream's server. PlayStream 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 PlayStream if Customer's hyperlink to PlayStream's service is inoperable.

Section 1.6a Encoding - Conversion of Customer's Media. PlayStream, 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 PlayStream with a copy of the materials to be converted in the format as specified on the Customer's quote submitted to PlayStream. Customer should not provide PlayStream with the original of the materials to be converted and, in no instance, shall PlayStream 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 PlayStream. Customers wishing this service must complete the Quote Request form at http://www.playstream.com/services/encoding.aspx. Customer will then receive the Quote for the costs of conversion which must be signed and returned to PlayStream prior to commencement of service. Customers utilizing this service shall be bound by the terms and conditions of 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. 

Customer represents and warrants that materials Customer provides for encoding by PlayStream, and PlayStream'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.  PlayStream shall not be liable for any such infringement, violation, or misappropriation, and Customer shall indemnify PlayStream against all losses and expenses, including for all attorneys' fees and other costs, relating to Customer's breach of that representation and warranty. 

Section 1.6b Encoding – Rush Fees.  PlayStream's standard turn-around time for encoding orders is five business days from receipt of materials.  For orders requiring shorter turn-around time, a Rush Fee shall be applicable. For twenty-four hour turnaround, the encoding rate will be billed at three times the standard rate.  For forty-eight hour turnaround, the encoding rate will be billed at two times the standard rate.

Section 1.7. Price and Payment. Customer agrees the use of the Service is subject to PlayStream's "Price and Payment Policy" as defined in Section 3.

Section 1.8. Cancellation of Service by PlayStream.  Customer agrees the use of the Service is subject to PlayStream's "Cancellation Policy" as defined in Section 4.

Section 1.9. Acceptable Use. Customer agrees the use of the Service is subject to PlayStream's "Acceptable Use Policy" as defined in Section 5.

Section 1.10. Service Level.  Customer agrees the use of the Service is subject to PlayStream's "Service Level Agreement" as defined in Section 6.

Section 1.11. Digital Rights Media Service.  Customer agrees the use of the Digital Rights Media ("DRM") Service is subject to PlayStream's "Digital Rights Media Service" as defined in Section 7.

Section 1.12. Copyright & Trademark.  Customer agrees the use of the Service is subject to PlayStream's "Copyright & Trademark Policy" as defined in Section 8.  Nothing in this Agreement shall be construed to grant PlayStream any right, title, or interest in or to any content of Customer other than those rights necessary for the sole purpose of enabling PlayStream to perform the services described herein or in any PlayStream Written Agreement, pursuant to the terms of this Agreement and/or such PlayStream Written Agreement.

Section 1.13. Privacy Policy.  Customer agrees the use of the Service is subject to PlayStream's "Privacy Policy" as defined in Section 9.

Section 1.14. Abuse and Infringement Notification.  Section 10 provides contact and detailed information on submitting notification of abuse, copyright or trademark infringement to PlayStream. 

Section 1.15. Security of Integrity Customer's Media. PlayStream provides best efforts to insure integrity and security of Customer's Media, including the use of automated tape-back up systems, secure servers, and restricted access to back office systems.  However, such procedures cannot guarantee complete security and integrity of media. Therefore, PlayStream makes no guarantee and assumes no liability for the security of any media on any server including "secure servers." Customer agrees to maintain separate backups of any media other than the backup systems that PlayStream has in place and PlayStream shall not be liable for the loss, or modification, of any Customer materials due to any breach of security.  PlayStream's backup systems are reserved for PlayStream'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 PlayStream's system failures or breach of security.

Section 1.16. Disclaimer of Warranty. PLAYSTREAM WARRANTS THAT THE SERVICE WILL OPERATE SUBSTANTIALLY IN CONFORMANCE WITH THE SPECIFICATIONS DEPICTED IN THEIR PACKAGE. TO THE EXTENT PERMITTED BY LAW, PLAYSTREAM DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT 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.

Section 1.17. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL PLAYSTREAM 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 PLAYSTREAM FOR THE SERVICE FOR WHICH DAMAGES ARE CLAIMED. IN NO EVENT SHALL PLAYSTREAM 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 PLAYSTREAM BE LIABLE TO CUSTOMER FOR ANY MARKETING, ADVERTISING, PROMOTIONAL EXPENSES OR ANY EXPENSES RELATED TO THE CUSTOMER'S USE OF PLAYSTREAM'S SERVICE, REGARDLESS OF ANY EVENT, INCLUDING INTERRUPTION OF PLAYSTREAM'S SERVICE, OR PLAYSTREAM'S REMOVAL OF CUSTOMER'S MATERIAL.

Section 1.18. 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 PlayStream's services.

Section 1.19. Governing Law. The laws of the State of Washington shall govern the validity, construction and performance of this Agreement.

Section 1.20. Arbitration. The parties agree to submit any dispute arising out of or in connection with this Agreement to binding arbitration in Washington before an arbitrator agreed to by both parties and subject to the rules of the American Arbitration Association. 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.

Section 1.21. Assignment and Account Ownership. Customer may not assign its rights or obligations arising under this Agreement without submitting a request to do so in writing, complete with original signatures, and without PlayStream's prior written consent. Should ownership of a PlayStream Account be disputed between two or more parties, priority shall first be given to the original name on the account for which invoices are submitted, supported by the billing address. If ownership of an Account remains in dispute, PlayStream reserves the right to interplead the dispute to binding arbitration as depicted in this Gene ral Terms and Conditions in the state of Washington , and suspend service and withhold Customer's content until court action determines otherwise. PlayStream may assign its rights and obligations under this Agreement, but must provide written notice to Customer within 30 days of doing so.

Section 1.22. Gene ral Provisions. BOTH PARTIES REPRESENT AND WARRANT THAT THEY HAVE FULL POWER (INCLUDING CORPORATE POWER) AND AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT AND TO PERFORM THEIR OBLIGATIONS HEREUNDER, AND THAT THE PERSON (AND COMPANY, IF APPLICABLE) WHO ACCEPTS THIS AGREEMENT BY CLICKING THE "I ACCEPT THESE TERMS AND CONDITIONS" BOX IS DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE PARTY.

Section 1.23. Amendment of Agreement. Unless a PlayStream Written Agreement specifies otherwise, PlayStream may amend this Agreement from time to time on an as-needed basis by placing an update of this Agreement on-line at PlayStream'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 on-line. If Customer does not agree with the terms and conditions of PlayStream, Customer must immediately cease the use of PlayStream's service.  PlayStream agrees to give written notice, via email to the primary email address on record, of any material changes that affect the length, pricing, privacy, or cancellation of this Agreement.

Section 1.24. Notices: PlayStream reserves the right to contact our users regarding important product or policy announcements and to satisfy legal requirements.  All legal notices to PlayStream should be submitted to:

PlayStream
Attn: Legal Affairs
555 Anton Blvd., Ste 400
Costa mesa, CA 92626
Tel: 714-549-5300
Fax: 714-549-5310
Email:
legal@PlayStream.com

If you have questions or comments, you can contact us at 714-549-5300 or FAX 714-549-5310 . We can also be reached at:

PlayStream
555 Anton Blvd., Ste 400
Costa mesa, CA 92626

2. Terms and Conditions – Term of Agreement

Section 2.1. Standard Term/Length of Agreement.  The Term/Length of this Agreement shall be month-to-month from the Effective Date of the Agreement with a minimum of one month or for the specified term of service as identified by the "Package" that Customer subscribes to.  Terms of any PlayStream Written Agreement between PlayStream and Customer shall override any inconsistencies or contradictory terms of this Agreement.  For purposes of this Agreement, the "Effective Date" shall be the date on which PlayStream delivers notification of account or service activation to Customer with regard to Customer’s order.

3. Terms and Conditions – Price and Payment

Section 3.1 Price and Payment. Customer shall pay PlayStream monthly recurring fees, in U.S. Dollars, as indicated at http://www.playstream.com or, if a PlayStream Written Agreement accompanies this document, as indicated by those terms, which include charges for use and occupancy of Customer's Allotted Space. In addition to any recurring fees, Customer may be charged non-recurring fees as indicated at this same Web site, or as a PlayStream Written Agreement specifies.

PlayStream reserves the right to increase or decrease prices for its services upon the expiration of the Customer's contracted term. Price increases or decreases for any or all services shall be posted on PlayStream's web site 30 days prior to taking effect. PlayStream agrees to submit written notice to the primary email address on record for the Customer at least 30 days prior to any price increases taking effect.  Price decreases shall automatically reflect on Customer’s next billing cycle, without advanced notice, after such price decreases are posted online.  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, unless otherwise stated.  It is our policy to bill our clients on a monthly basis, and in the absence of any agreement or arrangement to the contrary, we expect to be paid no later than the due date stated on the invoice.  Our monthly statements will be itemized as to each general activity.

Section 3.2a. Method of Payment.  PlayStream accepts payment by Credit Card, Check, Postal Money Order, PayPal and Wire Transfer.  PlayStream charges $20.00 for each check returned (rejected) by the bank.  PlayStream accepts Visa, Mastercard, American Express, Discover, Carte Blanche, Diners Club and JCB credit cards.  For Credit Card payments, the name, “PlayStream,” shall appear on your credit card statement.  PlayStream maintains currency accounts in U.S. Dollars, Australian Dollars, Canadian Dollars, Euros, Mexican Pesos, and Sterling Pounds.  Payment may be remitted in any of these currencies by wire transfer or check or money order.

Section 3.2b. PayPal Payments.  PlayStream accepts payment by PayPal.  For further information in regard to submitting payment by PayPal, please visit their Web site at http://www.paypal.com. Customers submitting payment by PayPal shall submit payment to paypal@playstream.com, and agree to provide their PlayStream Customer ID Number in their available optional text field for proper payment tracking purposes.  For Customers who submit payment in Canadian Dollars, Sterling Pounds, Euro Dollars and Japanese Yen, PlayStream’s default PayPal preference setting is to accept and automatically convert these currencies to U.S. Dollars.  Therefore, it is the Customers responsibility to properly calculate the currency exchange rate when submitting payment through PayPal in a non-US Dollar currency.  PlayStream will post to Customers account the U.S. Dollar after conversion.  Customers assumes all risk for fluctuations in the currency exchange rates.

Section 3.3. Late Payment. Customer Balances are due no later than 3:00 PM Pacific Time, on the 20th day after the initial bill date for service stated on the invoice. If a Balance is due 57 days after the initial bill date for service, Customer's Account shall be suspended for service. If a balance remains due 70 days past the initial bill date for service, Customer's Account shall be submitted to PlayStream's Collection Agency for processing, as described in Section 3.4. PlayStream will make reasonable efforts to notify Customer, in advance, of pending late fees, account suspension and Account submission to Collection Agency, but PlayStream’s failure to provide notice will not prevent PlayStream from exercising any of its rights regarding past due amounts. PlayStream will make reasonable efforts to preserve Customer’s content off-line, for up to 70 days past the initial bill date for service. If Account Balance is not settled, PlayStream reserves the right to destroy the content on PlayStream's service to make space for new Customers.

Section 3.4. Collection Agency. Customer Balances (Amounts) past due by 70 days are subject to submission to PlayStream's Collection Agency. Customer Accounts will incur a Collections Service Fee of $20.00 (Twenty U.S. Dollars).  Customer will also be liable for additional further collection costs.

Section 3.5.  Credit Card Chargebacks.  Anytime a Chargeback Request is received from our Merchant bank, PlayStream reserves the right to immediately suspend Customer’s Account until the Chargeback Request has been formally resolved between PlayStream and the Merchant Service Authority.  This process may take up to, and possibly more than, a week.  If you are disputing a billing error, PlayStream encourages Customer to first contact PlayStream’s Customer Service to resolve any discrepancies to avoid having Customer’s Account suspended upon notification of a Chargeback.  PlayStream reserves the right to refuse any additional service to Customer while a Chargeback Notice is pending investigation by the Merchant Service Authority.

Section 3.6.  Service Upgrades or Downgrades.  For customers upgrading or downgrading their Service, the upgrade or downgrade shall become effective as of the date that the Upgrade or Downgrade order was submitted to PlayStream.  For the current billing cycle, PlayStream will pro-rate daily, the service charges, as posted online at PlayStream’s Web site, at the time of Customer’s request, and recalculate the service based on the upgraded or downgraded service price, and charge the remainder of the current period at the new upgraded or downgraded service pricing.  This policy applies to all services, except for those services defined in Section 3.7 below.

Section 3.7a Exception to Service Upgrades or Downgrades: Data Transfer Pricing for “ Enterprise On Demand” or “Live Webcast (Usage Based)” Services.  For customers who are subscribing to PlayStream’s “Enterprise On Demand” or “Live Webcast (Usage Based)” services, Data Transfer Rates are priced on a data transfer usage basis.  Data Transfer measurements are conducted daily (every twenty-four hours) based on Greenwich Mean Time (GMT).  All megabytes transferred for that day that are equal to or less then the “DAILY Data Transfer Threshold” assigned for that rate plan package, are billed at the “Rate Under Daily Data Transfer Threshold.”  All megabytes transferred during that day that exceed the “DAILY Data Transfer Threshold” are billed at the “Rate Over Daily Data Transfer Threshold.”  The Service Minimum is the minimum months of service that must be subscribed to be eligible for that Data Tranfer Rate Plan.  If the monthly total data transfer is less than the monthly minimum commitment assigned for that rate plan package, then the monthly minimum will be billed instead of the data transfer.

In the absence of a PlayStream Written Agreement, all “Enterprise On Demand” and “Live Webcast (Usage Based)” services are priced according to Data Transfer Rate Plan One, as described on PlayStream’s Web site at http://www.playstream.com.  There is no monthly minimum commitment for Data Transfer Rate Plan One and the Service Minimum term for Data Transfer Rate Plan One shall be one month.  For calculation purposes, PlayStream assumes 1,024 Megabytes are in one Gigabyte.

For customers upgrading between Data Transfer Rate Plans, the upgrade shall become effective as of the beginning of the current billing cycle, which is the first of the month during the month that the upgrade occurs.

For customers downgrading between Data Transfer Rate Plans, the downgrade shall become effective as of the first calendar day following the end of the Service Term.  For Data Transfer Rate Plans with a Service Minimum of one month, then the downgrade shall become effective as of the first of the next calendar month.

Section 3.7b Exception to Service Upgrades or Downgrades: “Live Webcast (Fixed Rate)” Services.  For customers who are subscribing to PlayStream’s “Live Webcast (Fixed Rate)” Services, any Service Upgrade may occur only as of the beginning of the 1st of a calendar month.  Customers may request to upgrade their Service during another day of the month, but if so, the old Service shall be credited to Customers account as of the 1st of the current month and the new Service shall be charged to Customers account as of the 1st of the current month.  There is no prorated rate provided for the new Service period that is less than a full month.  Customers may submit a request to downgrade or terminate their Service at any time, but the downgrade or termination effective date will only be effective as of the end of the last day of the current month.  There is no prorated rate provided for the existing Service that is less than a full month.

Section 3.8. Refund Policy.  Accounts cancelled/terminated by PlayStream for violating our Terms and Conditions of Service do not qualify for any refunds.  For Accounts cancelled/terminated by Customer in compliance with our Terms and Conditions, PlayStream will refund any due credit and/or overpayment back to Customer via either a Company Check or credit back to your bank account/credit card within one calendar month of Account Closure.  PlayStream will be the sole arbiter as to how the refund should be completed.

4. Terms and Conditions - Cancellation

Section 4.1. Cancellation of Service by PlayStream. PlayStream reserves the right to cancel the Customer's account should the Customer fail to adhere to the terms of this Agreement.  For live services, this includes cancellation of a live streaming service at the end of the fifth business day (Pacific Time) if a signed Live Service Agreement has not been received, agreed to and accepted by PlayStream.  Should cancellation of an account occur, PlayStream will reimburse client any unused fees (prorated daily), after PlayStream has determined, in its own discretion, that all charges associated with the account have been satisfactorily paid. Upon request of Customer, PlayStream shall return all Customer materials. PlayStream 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 PlayStream for the misuse of the account or if PlayStream reasonably believes legal action may be brought against PlayStream. Under such conditions, PlayStream may withhold such fees until it has been determined that any legal action brought against PlayStream has been satisfactorily resolved and all charges have been satisfactorily paid.

Section 4.2. Cancellation of Service by Customer. Customer shall have the right to terminate this Agreement as per Section 4.3, unless a PlayStream Written Agreement specifies otherwise. PlayStream shall reimburse client any unused fees (prorated daily), after PlayStream has determined, in its own discretion, that all charges associated with the account have been satisfactorily paid. Prior to cancellation of service, Customer is responsible for removing their materials from their allotted space on PlayStream's servers and PlayStream will not be responsible for storage and preservation of Customer's materials upon receipt of request for cancellation. PlayStream 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 PlayStream for the misuse of the account or if PlayStream reasonably believes legal action may be brought against PlayStream. Under such conditions, PlayStream may withhold such fees until it has been determined that any legal action brought against PlayStream has been satisfactorily resolved and all charges have been satisfactorily paid.

Section 4.3.  Effective Date of Cancellation.  Upon receipt of written notice, as defined in Section 4.4, from Customer, followed by written acknowledgement from PlayStream to cancel the service, the Effective Date of Cancellation shall be end of the current billing cycle.

Section 4.4.  Definition of “Written Notice” for Cancellation.  Customer agrees to submit notification of Cancellation of service to PlayStream by a) logging into PlayStream Director (defined as PlayStream’s online account management center located at http://www.playstream.com) and properly completing the online Cancellation Procedure, or b) by submitting written notice by postal mail to PlayStream, or c) by submitting written notice by facsimile to PlayStream.  Customers electing to submit notice of Cancellation by postal mail or facsimile shall submit such notice to the address and facsimile stated in Section 1, General Terms and Conditions of Use.  Customer agrees that submitting a notice of Cancellation by Email or telephone is an unacceptable form of submitting notice of Cancellation to PlayStream, and that service charges may continue to apply until PlayStream has received the proper notice of Cancellation.

Section 4.5.  Cancellation of Live Streaming Services.  All terms and conditions described above shall apply with respect to cancellation of Live Streaming Services, except if Customer cancels Live Streaming Services no later than the third business day by 5:00 PM Pacific Time following the date of activation of the service, then Customer will be credited the Mount Point fee plus any data transfer charges that are up to and equal to 400 Megabytes of data transfer.  Any data transfer charges exceeding 400 Megabytes will be charged at the rate of $0.01 (one cent) per Megabyte transferred.

5. Terms and Conditions – Acceptable Use

Section 5.1 Content of Customer's Materials. PlayStream does not actively monitor the Customer's material nor does PlayStream exercise any editorial control over the content of any material that the Customer uploads into PlayStream's service. However, PlayStream reserves the right to remove any and/or all of the Customer's material from PlayStream's service that are, in PlayStream's discretion, potentially illegal, a violation of Trademark and/or Copyright, or may subject PlayStream to liability, or violate the acceptable use policy stated below in this Agreement. Upon removal of the material, PlayStream shall notify Customer of the removal of the materials, as well as the reason for removal. In no instance shall PlayStream be liable for the removal of the materials.

Section 5.2 Acceptable Uses. This Agreement is designed to help protect PlayStream'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, as depicted in Section 5.3 below, PlayStream reserves the right to suspend or terminate the service without notice. PlayStream shall make reasonable efforts to advise Customer of the inappropriate behavior and offer any corrective action necessary. PlayStream reserves the right to immediately terminate its service to Customer for any flagrant or repeat violations of this Agreement.

Section 5.3.  Non Acceptable Uses.  Incidents that may cause the account to be terminated include, but are not limited to:

a)       Harassment: using the service to threaten or harass or promote terrorism.

b)       Using the service for any purpose other than which it is intended.

c)       Using the service for submission, generation or inclusion of unsolicited bulk email or other forms of email abuse (i.e. SPAM).  Failure to respond to a SPAM notice shall also constitute grounds for termination of account.

d)       Attempting to impersonate any person, using forged headers or other identifying information in a defamatory way.

e)       Violation of Trademark and/or Copyrighted material. Upon receipt of a compliant legal notice alleging that copyright infringement is occurring, PlayStream will remove said material and provide Customer with a copy of the compliant notice of Copyright infringement.  Said material shall remain removed from PlayStream’s service until Customer has provided the designated agent at PlayStream a compliant Counter Notification.  Upon receipt of the compliant Counter Notification, the law requires PlayStream to submit a copy of the Counter Notification to the complaining party with notice that PlayStream will replace or re-enable access to the allegedly infringing material in ten business days.  Then, ten to fourteen business days after receiving the Counter Notification, PlayStream will replace or re-enable access to the allegedly infringing material, unless the complaining party has notified PlayStream’s designated agent that a court action relating to the materials in question has been filed in order to stop the alleged copyright.  Accounts belonging to repeated infringers, under appropriate circumstances, will be terminated.  For further information, see Section 9 – Infringement and Abuse Notifications.

f)        Uploading any data or executable computer programs containing a virus or other malicious code which may be deemed as viral, or may cause a disruption to the service or another computer.

g)       Untimely payment of any and all amounts due.

h)       Any action that violates the laws of applicable local, state, federal or international governmental bodies.

i)         Sharing the account with anyone or re-selling the service without express written permission from PlayStream.

j)         Exceeding a maximum of 1500 files and/or folders in a single directory (folder).

k)       Exceeding 400 Megabytes of Data Transfer in the “Free 15 Day Evaluation” Account.

l)         Signing up for another account after suspension of a prior account for nonpayment unless the balance on the prior account has been paid in full. 

m)      Signing up for another account after suspension of a prior account for non-acceptable use, unless prior written permission is obtained from Playstream. 

n)       Conducting a Simulated Live Event through an On-Demand Account without prior written approval.

Customer will not register for or use the “Free 15 Day Evaluation” Account (defined as the “Evaluation Account”) for any purpose other than making a good faith evaluation of whether Customer wishes to purchase one or more of PlayStream’s services.  Registering for or using an Evaluation Account for any purpose, including without limitation to provide commercial benefits to Customer or others (other than as a preliminary step that results in the purchase of one or more of PlayStream’s services), repeatedly registering for Evaluation Accounts to avoid paying fees and costs associated with PlayStream’s services, or otherwise abusing an Evaluation Account, constitutes a breach of this Agreement, trespass upon PlayStream’s Web site, and conversion of PlayStream’s services and resources.

PlayStream 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. PlayStream reserves the right to monitor or view material uploaded by Customer onto PlayStream's service at any time for the purpose of ensuring compliance with this Agreement.

Section 5.4.  Acceptable, But Not Suitable Uses For Customer or Technical Support. In some cases, Customer’s content may not violate PlayStream’s “Acceptable Use” Policy, but yet be considered unsuitable for viewing or providing support in a professional environment shared by PlayStream’s employees.  Such content (hereinafter deemed “Unsuitable Content”) may be offensive, vulgar, excessively provocative, violent, of an Adult nature, contain nudity, unsuitable language, or other nature that warrants the content unsuitable for viewing or listening. 

While it is not PlayStream’s policy to exercise censorship and remove content from our service that does not violate PlayStream’s “Acceptable Use” Policy, any content that is considered unsuitable for viewing will NOT be played, viewed, encoded, captured, digitized, handled or otherwise, displayed in any way, by any PlayStream employee in the offices of PlayStream.  All employees of PlayStream are permitted to use their own discretion in determining and rejecting content that is unsuitable for viewing or listening to for the nature of providing Customer Service or Technical Support.  If employees encounter a Customer requesting support for such content, PlayStream’s employees are required to notify Customer that suitable content for viewing must be uploaded into the account for any support to be made available, and only for suitable content, and that no support or customer service will be provided for unsuitable content.

If PlayStream receives an order or a shipment for the purposes of preparing any content for streaming, including, but not limited to digitizing or encoding, that should be unsuitable, whether discovery of such content is made prior to performing the service, or during the course of performing the service, such service shall cease immediately.  PlayStream will then return the content, or at the discretion and sole determination by PlayStream’s management, refer the Customer to an independent contractor for completion of services.

Section 5.5.  Receipt of Copyright or Trademark Infringement Notification.  If PlayStream receives a notification of claimed copyright or trademark infringement with regard to Customer’s content, whereby the notification includes: a physical or electronic signature of the owner (or person authorized to act on behalf of the owner) of an exclusive right that is allegedly infringed; specific identification of the copyrighted, trademark or patented work claimed to have been infringed, or if multiple works are covered by a single notification, a list of each work claimed to have been infringed; information related to the work(s) reasonably sufficient for PlayStream to promptly locate the work (e.g. title of work, URL location) within PlayStream’s Web site, PlayStream’s Customer’s Web site, or that of a third party Web site; information reasonably sufficient to permit PlayStream to directly contact the complaining party, such as a complete name and address, telephone number and/or email address; a statement that the complaining party has a good faith belief that use of the work(s) in the manner complained of is not authorized by the copyright owner, its agent or the law; a statement requesting that PlayStream take a specific act with respect to the alleged infringement (e.g., removal, access restricted or disabled; and a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, then PlayStream will take appropriate actions under the Digital Millennium Copyright Act and/or other applicable intellectual property laws, which may including disabling or removing the work(s) from service and/or suspend or terminate Customer’s service and withhold Customer’s content until the matter has been fully resolved by all parties and such resolution has been submitted in writing to PlayStream on terms mutually acceptable to PlayStream, or if court action of legal jurisdiction determines otherwise.

Section 5.6. Live Events. Customer agrees not to use the service to host "live events" without the express written permission of PlayStream and, if such consent is given, only pursuant to the terms and conditions designated in the written permission from PlayStream or as per a PlayStream Written Agreement. In the event that Customer uses the service to host "live events" without the express written consent of PlayStream, PlayStream reserves the right to remove Customer's materials from PlayStream's service, or otherwise block access by third-parties to Customer's materials.

Section 5.7. Disk and Bandwidth Utilization. PlayStream'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. PlayStream reserves the right to remove material and/or terminate or suspend the account due to any violation of bandwidth or utilizations limits ("overage") that PlayStream 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, unless a PlayStream Written Agreement specifies otherwise).  For megabyte-to-gigabyte calculation purposes, PlayStream uses the formula, 1,024 megabytes equals 1 (one) gigabyte.

While PlayStream implements security mechanisms to prevent disk space over utilization, bandwidth monitoring, and online notification of disk space and bandwidth usage, PlayStream cannot insure that such security, monitoring and notification mechanisms will work at all times without system failure.  Therefore, PlayStream is not responsible to notify Customer of overages and it is the Customer's responsibility to ascertain these conditions and to notify PlayStream if Customer suspects a failure may have occurred. PlayStream will make reasonable efforts to keep client informed of overages exceeding Customer's allotment by 200% or more but can not guarantee such notification.  PlayStream 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.

Section 5.8. Music License Fees.  Customer shall be responsible for insuring that Customer’s content will comply with all applicable licensing requirements by federal, state, local, regulated and contractual music licensing fees, including, without limitation, all BMI, ASCAP, and SESAC licensing requirements and fees, as well as all requirements and fees of the Digital Millennium Copyright Act of 1998.

Section 5.9. Modification of Media. In the event Customer wishes to modify, or otherwise change, the media on their Allotted Space, Customer shall have the privilege 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 their allotted package disk space and/or data-traffic should submit a request for modification to support@playstream.com or use Customer’s login and password to request a modification of service online.

6. Terms and Conditions – Service Level Agreement

Section 6.1.  Service Availability – 99.9% Uptime Guaranty. For Customers engaged in PlayStream Written Agreements, qualified by PlayStream's monthly minimum fee and term of service, and requested by Customer, PlayStream's streaming services are backed by a separate, written and signed Service Level Guaranty that provides for 99.9% Uptime Guaranty of Service Availability. In the absence of a written and signed Service Level Agreement, which must be submitted by Customer and accepted and signed by PlayStream prior to any violation of Service Level Agreement depicted in Section 6.2 below, PlayStream provides the following Uptime Guaranty Service Level Agreement for its Streaming Services depicted in Section 6.2.

Section 6.2. Service Availability – 99.0% Uptime Guaranty. PlayStream uses best efforts to keep its service up and running. However, PlayStream cannot and will not guarantee 100% uptime of its service. PlayStream's service is guaranteed to be available and capable of forwarding IP packets 99.0% (ninety-nine percent) of the time, as averaged over the life of the Service Period, as defined in PlayStream's Term of Service Policy.  Downtime shall consist of packet loss, which is sustained in excess of 50% for 15 consecutive minutes.  If PlayStream sustains downtime (a disruption of service) of a duration of more than 7.2 hours (seven hours and twelve minutes) and in aggregate, during a Service Period, as defined in PlayStream's Term of Service Policy, then Customer may elect to cancel the Service/Agreement, and PlayStream agrees to reimburse Customer, on a daily pro-rated basis upon request, any fees paid to PlayStream for which service was unavailable and/or not rendered.  For the calculation, PlayStream assumes a total of 30 Days within a Service Period, which provides a total of 720 hours.  PlayStream guarantees 99.0% of this time period, or 712.8 hours (712 hours and forty-eight minutes) to be free of downtime, as defined in this paragraph.

Customer shall remain liable to PlayStream for all other fees associated with the service, including one-time encoding fees and any excess bandwidth usage fees incurred prior to the termination of the service.  This guaranty shall not apply for disruption of service to end-user that is due to network congestion on the Internet or other related disruptions on the Internet that are not related to PlayStream's service.  It is very possible that PlayStream's service is fully operational, but the end-user's access to the media is disrupted by means of independent backbone carrier issues.  For continual (24x7x365) monitoring of its primary and backup systems, PlayStream employs an independent party, Keynote Systems, Inc., which provides statistical evidence of its uptime.  Such data may be used to resolve a dispute.  In the absence of a dispute over an alleged violation, such data shall remain confidential to PlayStream.

Customer must provide information supporting the claim of this Service Level Agreement violation such as Traceroute and/or PING data produced during the time of the incident.

Section 6.3. Notice of Violation of Service Level Agreement.  To terminate the contract, Customer must give written notice within four business days of violation of this Service Level Agreement at:

               PlayStream
                555 Anton Blvd Ste., 400
               
Costa Mesa , CA 92626
                (714) 549-5300
                FAX: (714) 549-5310

7. Terms and Conditions – “Digital Rights Media” (“DRM”) Services

Section 7.1 Digital Rights Media Services.  Subject to the terms and conditions of this Digital Rights Media (“DRM”) Service Agreement, Playstream agrees to provide during the Term the services identified below (the “Services”) for purposes of making Customer’s content (the “Content”) available for distribution in protected digital format.

Section 7.2 Definitions.  The following terms used in this Section shall have the meanings assigned to them below:

“Advanced Systems Format” or “ASF” means the current version of the extensible file storage format developed by or for Microsoft for authoring, editing, archiving, distributing, streaming, playing, referencing, or otherwise manipulating Content, as used by the Windows Media technologies.

“Content” means digital audio (including, but not limited to, timeline-synchronized audio, music, voice and sounds), digital video, and other digital information including data, text (including, but not limited to, script command data and related metadata such as a song title or an artist’s name), animation, graphics, photographs, ring tones and artwork, and combinations of any or all of the foregoing.

“DRM” means Microsoft’s digital rights management system for Windows Media technologies that enables enforcement of business rules and license-based access to ASF Content consistent with the terms and conditions of this Agreement.

“DRM Client” means Microsoft’s client-side technology that enables the enforcement of business rules and license-based access to ASF Content by the Windows Media Player.

“DRM Client Certificate” means a Microsoft-provided, unique to DRM Client application, security sub-component that enables the use of the DRM Client.

“DRM Flag(s)” means flag(s) describing license condition(s) for, and set by the creator or authorized licensor of, Protected ASF Content.

“Protected ASF Content” means ASF Content that has been protected by DRM.

Section 7.3. Digital Rights Licenses:  The digital rights licenses available to Customer with regard to Protected ASF Content shall be depicted on Playstream’s Web site at http://www.playstream.com.  Regardless of any express right set forth at http://www.playstream.com, Customer agrees to NOT edit Protected ASF Content that Customer does not own or have the rights to so modify, or modify ASF Content in a manner that violates the DRM Flags in any DRM license associated with ASF Content.

Section 7.4. Ownership, Reservation of Rights.  Nothing in this Agreement shall be construed to grant Customer any rights, by license, title or otherwise, to any aspect of Playstream’s intellectual property or to the intellectual property of any third party used in connection with distributing the ASF Content.  This Agreement shall not be construed in any manner as transferring any rights of ownership or license to the DRM Server Certificate(s) or any component thereof.  All rights not expressly granted by Playstream are reserved.  Under no circumstances will the license grants set forth in this Agreement be construed as granting, by implication, estoppels or otherwise, a license to any Playstream technology, or technology of any third party used in connection with distributing the ASF Content. 

Section 7.5. LIMITATION.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT TO THE CONTRARY: (i) THE DRM PRODUCTS AND SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  PLAYSTREAM DOES NOT WARRANT THAT THE DRM PRODUCTS AND/OR SERVICES WILL MEET THE REQUIREMENTS OF CUSTOMER OR THOSE OF ANY THIRD PARTY AND, IN PARTICULAR, PLAYSTREAM DOES NOT WARRANT THAT THE PLAYSTREAM PRODUCTS AND/OR SERVICES WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION.

Section 7.6. DISCLAIMER OF WARRANTIES.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PLAYSTREAM, ITS AFFILIATES AND ITS SUPPLIERS PROVIDE THE DRM SERVICE AND ALL COMPONENTS THEREOF, AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF LACK OF VIRUSES OR, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, AND OF LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, ALL WITH REGARD TO THE SERVICE.  FURTHER, THERE IS NO, AND PLAYSTREAM DISCLAIMS ANY WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT, WITH REGARD TO THE SERVICE.  THE ENTIRE RISK AS TO THE QUALITY OF OR ARISING OUT OF USE OR PERFORMANCE OF THIS SERVICE, IF ANY, REMAINS WITH THE CUSTOMER.

Section 7.7. DISCLAIMER OF CONSEQUENTIAL DAMAGES, LIMITATION OF LIABILITY.  EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PLAYSTREAM, ITS AFFILIATES OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PROVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICE OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISINO OF AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF PLAYSTREAM, ANY PLAYSTREAM AFFILIATE OR ANY PLAYSTREAM SUPPLIER, AND EVEN IF PLAYSTREAM, ANY OF ITS SUPPLIERS OR AFFILIATES OR CUSTOMER AND ANY CUSTOMER AFFILATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Section 7.8. LIMITATION OF LIABILITY AND REMEDIES.  NOTWITHSTANDING ANY DAMAGES THAT COMPANY MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE AGGREGATE LIABILITY OF PLAYSTREAM, ALL PLAYSTREAM SUPPLIERS AND PLAYSTREAM AFFILIATES UNDER ANY PROVIDSION OF THIS AGREEMENT SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT OR FIFTY DOLLARS ($50.00) WHICHEVER IS GREATER.  THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

Section 7.9. Potential Liability  Playstream reserves the right to refuse to provide DRM Services with respect to any piece of Content or to a Customer if Playstream reasonably believes the distribution of such piece of Content exposes Customer and/or Playstream to potential legal liability in any country.

8. Terms and Conditions - Copyright & Trademark

Section 8.1. Copyright. The entire content of PlayStream's Service, including its Web site, is copyrighted, and all rights are reserved.

Section 8.2.  Trademark Reservation of Rights.  PlayStream, Inc. (hereinafter referred to as PlayStream), and/or its licensors, 1998 – 2004, is the exclusive owner of all right, title, and interest in the PlayStream Marks and PlayStream Logos. No person or entity may reproduce or use (or authorize the reproduction or use of) the PlayStream Marks or the PlayStream Logos in any manner other than expressly authorized by PlayStream.   Unauthorized use of PlayStream’s Marks or PlayStream’s logos is strictly prohibited.  “PlayStream,” “PlayStream.com,” and “DigitalRightsMedia” are the trademarks of PlayStream, Inc. 

Section 8.3.  Trademark Usage Policy.  The proper use of PlayStream’s trademark and logos are described below:

Section 8.3.1. Use Correct Trademark Symbol.  When using PlayStream’s trademark in text form (“PlayStream Mark”) or art form (“PlayStream Logo”) use the correct ® or ™ trademark identification symbol.  The ® symbol is used for the PlayStream Marks registered with the U.S. Patent & Trademark Office and the ™ symbol is used if the PlayStream Mark is not yet registered.  The following PlayStream Marks should display the ® symbol: PlayStream®, PlayStream.com®.  The following Marks should display the ™ symbol: DigitalRightsMedia™.

Section 8.3.2.  No Alteration of PlayStream Marks or PlayStream Logos.  When using a PlayStream Mark, never vary the spelling, insert a hyphen, separate into two words, or use a plural form of the PlayStream Mark.  When using a PlayStream Logo, never alter or modify the design, art, colors, proportions, or add or delete any words or hyphens.  Do not abbreviate the PlayStream Mark to create any acronym, such as PS instead of PlayStream®.

Section 8.3.3.  The PlayStream Logo.  The PlayStream logo must be a stand-alone graphic or icon to depict the origination of PlayStream, without other marks or logos associated with it. 

Section 8.3.4.  No Third Party Conjunction.  Only PlayStream’s products and services may be associated with the PlayStream Mark or PlayStream Logo.  No third party mark or logo may be used in conjunction with PlayStream’s Marks or Logos.  The PlayStream Marks or Logos may not be used as part of the product or service name for a third party product or service.

Section 8.3.5.  Using Footnotes for Accurate Attribution.  It is PlayStream’s policy to attribute PlayStream’s Marks and PlayStream’s Logos use by placing the information in a footnote that states:  “PlayStream (or other PlayStream Mark or Logo) is a trademark (or a registered trademark) of PlayStream, Inc.”

Section 8.3.6.  Third Party Licensors.  PlayStream’s services include technology used under license from third party licensors.  You may not use any such third party trademark without express permission from the owner of that trademark.

Section 8.3.7.  Modifications and Restrictions.  PlayStream may, at its sole discretion, modify the PlayStream Marks or PlayStream Logos at any time.  Please refer to the PlayStream Marks and Logo Chart periodically to ensure full compliance.  In order to assure compliance and quality control, PlayStream may request that you provide samples of any marketing, advertising, or other materials that will include the PlayStream Marks or PlayStream Logos.  No person or entity may use the PlayStream Marks or PlayStream Logos in association with any content or purpose that violates PlayStream’s Acceptable Use Policy in PlayStream’s Terms and Conditions of Use.  PlayStream may, in its sole discretion, restrict any person or entity from using or displaying the PlayStream Marks or PlayStream Logos. 

Section 8.4. Copyright and/or Trademark Infringement Notification Procedure.
For information on submitting notification of copyright, trademark, or patent infringement, or for any notification of abuse, please review our notification procedures and guidelines depicted in Section 10, Abuse & Infringement Notification.

PLAYSTREAM INC PRIVACY POLICY

Purpose of Policy

Playstream, Inc. is committed to respecting the privacy rights of its customers and visitors. We created this privacy policy to give you confidence as you visit and use this Site (http://www.PlayStream.com). This policy is only applicable to this Site, and not to any other websites that you may be able to access from this Site, each of which may have data collection and use practices and policies that differ materially from this policy.

In operating its Site, Playstream, Inc. may include registration, online surveys, and other online forms which collect "Personally Identifiable Information", such as names, e-mail addresses, telephone numbers and other contact information. For example, our Site uses an Encoding Request Form so that you can request information and services from us and your information is necessary for us to service your needs.

What Sites This Policy Covers

This privacy policy (the "Policy") discloses our privacy practices for http://www.PlayStream.com (the "PlayStream Site").

I. The Information We Collect, And How We Use It

PlayStream, Inc., is the sole owner of the information collected on our Sites. PlayStream collects different kinds of information from our users on our Sites, and we use that information in various ways, as explained below.

A. The PlayStream Site

1. PlayStream Newsletter

We provide a low-volume email newsletter (currently averaging one to two news announcements per month) to provide general news about PlayStream's new services, upgrades, and general information about our Sites and our services. There is an online field on PlayStream's home page that you can use to enter your email address in order to subscribe to the newsletter. You can also subscribe or unsubscribe to the Newsletter when you sign up for an Evaluation Account or place an Order for Service (as described below). You do this by checking a box on the relevant Evaluation Account or Order for Service order page.

When you subscribe to the newsletter, we use your email address to provide the newsletter to you via email. With each newsletter we provide a method to unsubscribe from the newsletter, with a link to the Web page where you can enter your request to unsubscribe. You may also contact PlayStream directly as described at the end of this Policy regarding unsubscribing from the newsletter.

2. Evaluation Account

PlayStream provides a 15-day free evaluation of our service, subject to PlayStream's Terms and Conditions of service. When you sign up for an Evaluation Account by filling out our online form, you are required to provide information that includes contact information (such as name and email address). We may, at times, also ask you to provide demographic information (such as income level and gender) or answers to survey questions (such as how you heard about PlayStream) during this process.

We use contact information to communicate with you about your Evaluation Account. We use demographic information you provide and your answers to surveys to improve our Sites and services we offer, and for any other purposes described in the surveys.

3. Order For Service

When you want to sign up for PlayStream's services (for more than the 15-day free period of an Evaluation Account), you can do so as an upgrade from an Evaluation Account or without having had an Evaluation Account at all. To sign up, you fill out the online Order For Service form, and in the process you are required to provide contact information (like name and shipping address) and financial information (credit card number, expiration date) on our order form. We use this information to communicate with you about your account, for billing purposes (including collection purposes, if necessary), and to fulfill your orders. If we have trouble processing an order, we use this contact information to get in touch with you.

4. Request For Proposal

Before or after you place an Order for Service, you may request information about additional services by completing PlayStream's online Request for Proposal. During this process, you are required to provide your contact information (such as name and email address) and information about the services you request. We use this information to communicate with you about your request and about the services on the PlayStream Site in which you have expressed interest, and to consider the nature of those requested services.

We may, at times, also ask you to provide demographic information (such as company location, and company type). While you are not required to provide this demographic information in order to use the services that are the subject of your Request for Proposal, we encourage you to do so to allow us to provide a more personalized experience on the PlayStream Site.

5. PlayStream Members' Web Site

Unless we indicate otherwise, you become an "Active Customer" on the Effective Start Date of the service you sign up for from the PlayStream Site (including under an Evaluation Account), and after that you remain an Active Customer until the Effective End Date of that service. As an Active Customer, you can manage certain aspects of your account (e.g., personal identification information, account records, media content, and various reports) by logging into the PlayStream Web site. To access the members' area of PlayStream's Web site, you must enter your unique user name and your password. We use that information to log you in to PlayStream's Web site.

6. Site and Service Updates

We use contact information from Active Customers to send them periodic Site and Service Updates, which contain important information about using the services on the PlayStream Site, including account billing and collections and technical support. We provide Site and Service Updates primarily through email, but we may do so sometimes by postal mail or phone. You may request to stop receiving Site and Service Updates by contacting PlayStream directly as described at the end of this Policy. We recommend against Active Customers unsubscribing from Site and Service Updates because of their importance. If you do unsubscribe to Site and Service Updates, you waive any right to receive notifications of any modifications or changes to the PlayStream Site, to our services, or to our policies. (However, this Policy does not establish or imply such a right.)

7. Surveys

From time-to-time our Sites may request information from you via surveys. Participation in these surveys is completely voluntary, and you therefore have a choice whether or not to disclose this information. Information requested may include contact information (such as name and shipping address), and demographic information (such as zip code, etc.). The information you provide in response to surveys will be used for purposes of monitoring or improving the use and satisfaction of our Sites and Services, and for other reasonably related purposes described in those surveys.

8. Cookies

A cookie is a piece of data stored on your computer in a folder dedicated to use by your web browser. There are two kinds of cookies we may set when you visit the PlayStream Site—"session cookies" and "offer code cookies." You can set your web browser to reject cookies, including our session cookies, but this will limit your ability to use our Sites. For example, you would need to reenter your password to enter each page on the PlayStream Site requiring password access, or you might not be able to access such pages at all. We do not link the information we store in cookies to any Personally Identifiable Information you submit while on our Site.

a. Session Cookies

"Session cookies" store information needed by the web server in order to avoid asking you for your password (if any) with each new page you visit. No other information is stored in session cookies. (In addition, password information itself is not stored in session cookies.) Session cookies are deleted when your session on the PlayStream Site ends (i.e: when you leave the PlayStream Site).

b. Referrals

As part of our ongoing marketing efforts, we provide certain incentives to qualified participants who refer new customers to the PlayStream Site. If you arrive at the PlayStream Site from a referrer's web site, we track this fact by placing the Offer Code that accompanies you from that site into an Offer Code cookie. In this way, we will know if you subscribe to PlayStream's Service following such a referral, and we can credit the incentive to the appropriate referrer as well as provide you with a discount if applicable. No Personally Identifiable Identification or financial information is collected or placed in the offer code cookie. Offer Code cookies persist on your hard drive for up to 30 days.

B. Log Files

When you visit any of our Sites, we collect your IP address and store it in a "log file." We also collect information about the browser and operating system you use, and store that information in log files. We use IP addresses we collect to analyze trends, administer our Sites, track users' movements within our Sites, track the sites users access just before (but not after) they visit our Sites, and gather broad demographic information for use in aggregate form.

When you open an Evaluation Account or become an Active Customer, we link your IP address to Personally Identifiable Information about you in your account records with PlayStream. We use this information to determine whether particular users are abusing Evaluation Accounts.

II. How We Share Information We Collect

In May, 2005 we announced that PlayStream, Inc. was acquired by PlayStream, Inc. As a natural consequence of the ongoing development of our company, we could be involved in other mergers or acquisitions. In that event, all of the customer information including both financial records and consumer information that we have collected may be transferred to or shared with companies owned by or within the common control of our parent holding company.

Please see Section VI. Regarding potential changes of ownership and changes in the use of Personally Identifiable Information.

We will share aggregated demographic information we collect on any of our Sites with selected third parties, including our partners and advertisers. This information is not linked to information that can identify any individual person.

If you just subscribe to our newsletter, we will not share your email address with any third party (except someone we may hire to provide services on our behalf concerning the newsletter), except in the event of a merger, acquisition, or other change of corporate control of PlayStream.

If you provide us with credit card information, we will use that information to process your credit card transactions with us. We do not share that information with any party that is not related to the direct processing and collection of those transactions.

As part of our referral program (see Section I.A(8)(c) above), we allow referrers to monitor their referral activity. Referrers may view their Referral Activity online, which specifically includes any commission amount, the date such commission was paid, and the Customer ID# of the Active Customer for which the commission was paid. Referrers are required to provide information confirming who they are before we give them this information. No other information identifying Active Customers is provided to the referrer. If an Active Customer desires to know if their Customer ID# is being viewed by a referrer, they may contact PlayStream directly for a confirmation of "yes" or "no."

We may disclose to anyone that your company is a customer of PlayStream, although we will not disclose specific information about your account (e.g., contact information) except as otherwise provided in this Policy.

We may use any information you provide to us to assist us in collecting past due amounts from you, including by sharing it with third parties we affiliate with for that purpose.

When we share information that identifies you individually with other companies that are providing services to us or on our behalf, our agreements with those companies require them to use that information only for the purposes described, and generally to protect that information at least as well as described in this Policy.

Please be aware that, despite anything else in this Policy: (a) if our company is involved in a stock or asset sale to or merger with another company, we may provide all of the information that we have collected from and about you to that other company, for the purpose of completing the sale or merger (for more information about how you may be notified in that event, see our Notification of Changes section)[; and (b) we will release specific personal information about you if required to do so in order to comply with any valid legal process such as a search warrant, subpoena, statute, or court order.

We may provide message boards from time to time. Remember if you post personal information online that is accessible to the public, you may receive unsolicited messages from other parties in return.

III. PlayStream's Policy Regarding Data From Children

PlayStream does not collect Personally Identifiable Information from individuals who PlayStream knows are under the age of 13 or who identify themselves as children under the age of 13, nor does PlayStream sell products or services for purchase by children. Our Sites are not intended for use by children under the age of 13. If PlayStream somehow becomes aware that it has received information from a child under the age of 13 through our Sites, we will respond, if appropriate, with at most a single response and will delete all Personally Identifiable Information (including email address) concerning that child from our records. That information will not be used for any other purposes, nor will it be disclosed to any other parties.

If a parent believes that his or her child has submitted personal information to our Sites, they may inform us at the address listed at the end of this Policy.

IV. Security

A. Generally

We are vitally concerned with security on our Sites and Services. We would like to ensure that information about you that we receive on our Sites is perfectly protected at all times, but no one could really make (and keep) that kind of promise. However, when you submit confidential information via our Sites, we do make reasonable efforts to protect that information both online and off-line.

When you are asked to enter confidential information on the PlayStream Site (such as credit card number), that information is encrypted with the leading encryption software in the industry—SSL. To learn more about SSL, follow this link http://www.thawte.com. Please be aware that despite the efforts we make, we cannot absolutely ensure or protect the security of any information transmitted to or by us over the Internet.

We also take the following significant steps to protect your information off-line. All of your information, not just the sensitive information mentioned above, is restricted in our offices. Only employees who need the information to perform a specific job (for example, our billing clerk or a customer service representative) are granted access to Personally Identifiable Information. Our employees are each assigned a unique login and password, and must use this login and password to access customer records where your personal and confidential information is recorded and stored. Our system provides an audit trail of modifications to customer records, which enables management to help monitor activity. Furthermore, all of our employees are kept up-to-date on our security and privacy practices. Finally, the servers that we store Personally Identifiable Information on are kept in a secure environment, behind a firewall in secured premises.

If you have any questions about the security at our Sites, you can send an email to legal@playstream.com.

B. PlayStream's Members' Web Site

As noted in Section I.A(5) above, Active Customers are required to enter their unique username and password to access PlayStream's Members' Web site, the online interface that enables Active Customers to view and modify their personal identification, account records, service type, media content, and reports. If you attempt to use PlayStream's Web site to view or modify billing information, such as credit card information on file, that information will be encrypted and provided only through SSL. PlayStream's Web site does not display all of the numbers of your credit card information when you view billing information online by logging into PlayStream's Web site, even though the information is being encrypted.

C. Passwords and Logins

PlayStream considers your password to be sensitive information protecting your account, and you are responsible for keeping your password secure and confidential. PlayStream does not consider your login to be sensitive information, as your login is used in various ways to identify your account, such as in technical support requests and on printed invoices. You may change your password by logging in to PlayStream's Web site at any time.

V. Correcting/Updating Personal Information

If your Personally Identifiable Information (such as your address) changes, or if you no longer desire our service, you may login to PlayStream's Web site to request modification and/or closure of your service (subject to any applicable agreements with PlayStream). You may also requests modification and/or closure of your service by emailing us at support@playstream.com or by contacting PlayStream via telephone at (843) 406-4974 during regular business hours. You can expect a response to your requests within one business day. (That response may be that we simply implement your requested change, or we may respond in some other way.) We reserve the right to retain information about you as needed (in our sole discretion) to collect amounts you owe to PlayStream.

VI. Notification of Changes

If we decide to change this privacy Policy, we will post an "Updated" notice in PlayStream's Member's Web site with the terms of this Policy one click away, so you can always be aware of what our privacy Policy is. The date of the latest change to this Policy is at the top of this Policy. We will also post this privacy Policy online with a link to it from our Sites. If at any point we decide to use or share Personally Identifiable Information in a manner different from that stated at the time it was collected, we will notify you by way of an email (if we have your email address) and also post a notice in the main login page of PlayStream Web site.

VII. Links

Our Sites may contain links to third parties' sites. Please be aware that PlayStream is not responsible for the privacy practices of such other sites. We encourage you to be aware when you leave our Sites and to read the privacy policies of each and every web site that collects Personally Identifiable Information. This Policy applies solely to information collected by our Sites.

VIII. Enforcement

PlayStream also is subject to the jurisdiction of the Federal Trade Commission (FTC), which has been active in monitoring the state of privacy on the Internet. The Federal Trade Commission is a government agency with the mandate to enforce the Federal Trade Commission Act, which prohibits unfair or deceptive acts or practices in or affecting commerce. The FTC has committed to reviewing, on a priority basis, referrals from TRUSTe. For further information, see http://www.ftc.gov.


IX. Opting Out

We do not disclose an individual customer's Personally Identifiable Information to third parties for third-party direct marketing purposes. For purposes of this policy, a third party is a company other than Internap Network Services Corporation or any of its subsidiaries.

If you do not wish your information to be disclosed to companies owned by or within the common control of our parent company, you may submit an opt-out request by email to support@playstream.com or to the following mailing address:

Privacy Policy
PlayStream
555 Anton Blvd., Ste 400
Costa mesa, CA 92626

Please allow up to two weeks for your request to be processed.

X. Contacting Us About Privacy

If you have any questions or complaints regarding this Privacy Policy, you may contact:

Privacy Policy
PlayStream
Attn: Legal Affairs
555 Anton Blvd., Ste 400
Costa mesa, CA 92626
Tel: 714-549-5300
Fax: 714-549-5310
Email: Support @PlayStream.com

10. Terms and Conditions - Abuse & Infringement Notification

Section 10.1. Copyright, Trademark & Patent Infringement and Abuse Notification Procedure.
PlayStream's designated agent for notice of claims of copyright, trademark, and/or patent infringement and/or abuse related to PlayStream, PlayStream.com, DigitalRightsMedia, PlayStream's properties, PlayStream's customers, employees, associates, affiliates, or referrers is as follows:

Designated Registered Agent For Receiving Notices:

PlayStream
Attn: Legal Affairs
555 Anton Blvd., Ste 400
Costa mesa, CA 92626
Tel: 714-549-5300
Fax: 714-549-5310
Email: legal@PlayStream.com

Section 10.2.  Notification of Copyright Infringement. To function as an effective notice, The Digital Millennium Copyright Act requires that all notifications of Copyright Infringement must be in writing and include substantially the following elements:

1. A physical or electronic signature of the owner (or person authorized to act on behalf of the owner) of an exclusive right that is allegedly infringed;

2. Specific identification of the copyrighted, trademark or patented work claimed to have been infringed, or if multiple works are covered by a single notification, a list of each work claimed to have been infringed;

3. Information related to the work(s) reasonably sufficient for PlayStream to promptly locate the work (e.g. title of work, URL location (complete Web site address) within PlayStream's Web site, PlayStream's Customer's Web site, or that of a third party Web site, etc.);

4. Information reasonably sufficient to permit PlayStream to directly contact the complaining party, such as a complete name and address, telephone number, and an email address;

5. A statement that the complaining party has a good faith belief that use of the work(s) in the manner complained of is not authorized by the copyright owner, its agent, or the law;

6. A statement requesting that PlayStream take a specific act with respect to the alleged infringement (e.g., removal, access restricted or disabled); and

7. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Upon receipt of proper notice of alleged infringement, PlayStream will forward a copy of the notice to the alleged infringing Customer and act expeditiously to remove, or disable access to the allegedly infringing material. This is not discretionary and does not depend on an analysis of whether the accused material actually constitutes copyright infringement. This is a requirement of the Digital Millennium Copyright Act (hereinafter referred to as “DMAC”) which states that a service provider shall not be liable to any person for any claim based on the service provider's good faith in disabling access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.

If PlayStream receives a compliant “Counter Notification” as described by the DMAC, from an affected Customer, PlayStream must promptly provide a copy of the “Counter Notification” to the complaining party that provided the notice of the alleged copyright infringement, and inform that party that PlayStream will replace or re-enable access to the allegedly infringing material in ten business days. Ten to fourteen business days after receiving the “Counter Notification,” PlayStream must replace and re-enable access to the removed material, unless the complaining party has notified PlayStream's copyright notice agent that he or she has filed a court action relating to the materials in question in order to stop the alleged copyright infringement.

To function as an effective “Counter Notification,” The Digital Millennium Copyright Act requires that all such “Counter Notifications” must be in writing and include substantially the following elements:

1. Identification of the material that PlayStream removed or disabled access to, and the location at which it previously appeared.

2. A statement, made under penalty of perjury, that the user has a good faith belief that PlayStream removed that material due to mistake or misidentification of the material to be removed or disabled.

3. The Customer's name, address, and telephone number.

4. A statement that the Customer consents to the jurisdiction of its local Federal District Court (or, for a user outside of the United States, a Federal District Court where PlayStream is located), and that the user will accept service of process from the person who provided the notice of alleged copyright infringement (or an agent of that person).

5. The Customer's physical or electronic signature.

Section 10.3.  Notification of All Other Claimed Infringement and or Abuse.  All other notification of claimed infringement, violation or abuse should be submitted to the designated PlayStream Contact depicted in Section 10.1, with sufficient information to properly identify and research the claimed infringement, violation and/or abuse and to properly respond to the person or entity submitting the notification. This includes notifications of claimed infringement related to any of PlayStream's patents, marks and/or logos or to any content, which includes any and all text, graphics, images, illustrations, video, audio, animation, designs or logos, of PlayStream or that of PlayStream's Customers, whether displayed on PlayStream's Web site, PlayStream's Customer's Web site, or on the Web site or email of a third or independent party, should be a written communication addressed to the designated agent above.

Section 10.4.  General Information Regarding PlayStream's Services.  PlayStream provides streaming media services for over a thousand customers who play their own audio, video and multimedia over the Internet. Like an Internet Service Provider that provides Web site hosting services for their customers, PlayStream provides media hosting services for PlayStream's Customers. Given that PlayStream may host a million or more data files of media at any given time, PlayStream cannot and does not actively monitor, endorse, approve, screen, or consider the Customer's material nor does PlayStream exercise any editorial control over the content of any material that PlayStream's Customer uploads into Customer's Account at PlayStream. As a Customer may activate PlayStream's services in real-time over the Internet, gaining immediate access to the service, PlayStream is limited in its time-to-action to block usage of the service to a Customer, and limited in its ability to block a Customer if such Customer re-subscribes to PlayStream's service under a unique identification or email address. Customers of PlayStream may display Customer's content on an auto-generated Showcase Web page at PlayStream, Customer's own Web site, the Web site of a third party or that via e-mail. PlayStream's policy is to fully comply with the Digital Millennium Copyright Act with respect to all claims of infringement. This includes the right to remove any/or all of Customer's material from PlayStream's service, or to suspend the Customer's service, that are, in PlayStream's discretion, potentially illegal, a violation of Trademark and/or Copyright, or may subject PlayStream to liability, or violate PlayStream's Acceptable Use Policy.

Section 10.5.  PlayStream Showcase Web Pages.  PlayStream's Showcase Web page is an online, customizable tool that is packaged with each Customer's Service that enables the Customer to self-generate a showcase Web page that will present Customer's media to a viewer. PlayStream's Customers accomplish this by constructing a custom “link” that must include identifiable Customer and file information. Customer may then submit this custom “link” to a viewer by email, post on a Web site, or other similar means. When clicked on by the viewer, a Web page will auto-generate from a pre-defined template, around the Customer's media. These Showcase Web pages build in real-time inside the viewer's Web browser and do not exist as actual Web page files like ordinary Web site Web pages exist on a Web server. Given that PlayStream's Customers may create and send these auto-generated Web pages over the Internet at any given time, PlayStream cannot and does not actively monitor, endorse, approve, screen, or consider the Customer's material that Customer inserts into a Customer-generated PlayStream Showcase Web page, nor does PlayStream exercise any editorial control over such content. If a notification of Claimed Infringement or other violation is being submitted of any work displayed inside of a PlayStream Showcase Web page, it is essential that the complete “link” (full Web page URL) be provided to PlayStream in order to identify the Customer and specific file for which the infringement is being claimed. Otherwise, identifying the Customer and media file will prove nearly impossible.

Section 11.   Terms and Conditions – End User License Agreements.

Section 11.1. RealNetworks. Customer purchasing accounts that use RealNetworks, Inc., ("RealNetworks") Streams are using Streams subject to the RealNetworks Licensing Agreement and agree to be bound by RealNetworks End User License Agreement, a copy of which is available online for review at http://www.playstream.com/tc/license/RealNetworks.pdf. PlayStream shall not be liable for any violation of the RealNetworks End User Licensing Agreement by Customer and Customer shall indemnify PlayStream, including all attorney's fees and other costs, if PlayStream shall be held liable for Customer's violation of the Licensing Agreement by any court of competent jurisdiction. As PlayStream continuously upgrades our services with RealNetworks, their terms and conditions of their End User License Agreement are subject to change.

Section 11.2. 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 http://www.playstream.com/tc/license/windowsmedia.html. PlayStream shall not be liable for any violation of the Microsoft Windows Media Stream Licensing Agreement by Customer and Customer shall indemnify PlayStream, including all attorney's fees and other costs, if PlayStream shall be held liable for Customer's violation of the Licensing Agreement by any court of competent jurisdiction. As PlayStream continuously upgrades our services with Microsoft, their terms and conditions of their License Agreement are subject to change.

Section 11.3. QuickTime. Customer purchasing accounts that use QuickTime Streams are using Streams subject to Apple’s Public Source License Agreement (Darwin 3.0) and agree to be bound by Apple’s Public Source License Agreement as well as subsequent revisions that Apple Computer, Inc., may implement. You may view a copy of Apple’s Public Source License Agreement at http://www.playstream.com/tc/license/quicktime.html. PlayStream shall not be liable for any violation of Apple’s Public Source License Agreement by Customer and Customer shall indemnify PlayStream, including all attorney's fees and other costs, if PlayStream shall be held liable for Customer's violation of the Licensing Agreement by any court of competent jurisdiction. As PlayStream continuously upgrades our services with Apple Computer, Inc., their terms and conditions of their License Agreement are subject to change.

Section 11.4. Java Streaming.  Customer purchasing accounts that use Java Streaming are using Streams subject to the Free Software Foundation, Inc.’s GNU Gene ral Public License and agree to be bound by Free Software Foundation, Inc.,’s GNU Gene ral Public License Agreement as well as subsequent revisions that the Free Software Foundation may implement.  You may view a copy of the GNU Gene ral Public License at http://www.playstream.com/tc/license/javalicense.html. PlayStream shall not be liable for any violation of Free Software Foundation, Inc.’s Gene ral Public License Agreement by Customer and Customer shall indemnify PlayStream, including all attorney's fees and other costs, if PlayStream shall be held liable for Customer's violation of the Licensing Agreement by any court of competent jurisdiction. As PlayStream continuously upgrades our services with Free Software Foundation, Inc., their terms and conditions of their License Agreement are subject to change.

Section 11.5. Macromedia Flash Communication Server MX. Customer purchasing accounts that use Macromedia’s Flash Communication Server MX are using software subject to Macromedia, Inc.’s (hereinafter referred to as “Macromedia”) End User License Agreement (hereinafter referred to as “EULA”) and agree to be bound by Macromedia’s EULA as well as subsequent revisions that Macromedia may implement. You may view a copy of the EULA at http://www.playstream.com/tc/license/flashcommunicationserver.html. PlayStream shall not be liable for any violation of Macromedia’s EULA by Customer and Customer shall indemnify PlayStream, including all attorney's fees and other costs, if PlayStream shall be held liable for Customer's violation of the EULA by any court of competent jurisdiction. As PlayStream continuously upgrades our services with Macromedia, their terms and conditions of their EULA are subject to change.