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Digital Rights Management Services

Date Last Modified: November 8, 2004

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.



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