Date Last Modified: November 6, 2006
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 1.14. 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:
Attn: Legal Affairs
555 Anton Blvd., Ste 400
Costa mesa, CA 92626
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:
555 Anton Blvd., Ste 400
Costa mesa, CA 92626