StreamSpot Customer Agreement
This StreamSpot Customer Agreement (this "Agreement") is between Maximum Media LLC dba StreamSpot, an Ohio limited liability company ("Maximum Media"), and Customer (defined below). The "Services" are the services provided by Maximum Media, including, without limitation the StreamSpot video streaming and related services, through www.streamspot.com or any other website owned by Maximum Media that includes a link to this Agreement (a "Website"). "Customer" is the person or, if the person is acting on behalf of an entity or organization, the entity or organization that has registered to use the Services. Maximum Media will make the Services available to Customer in accordance with the terms and conditions set forth in this Agreement. By Customer registering for the Services, it is accepting that this Agreement is binding on Maximum Media.
1.1 Subject to the terms of this Agreement, Maximum Media will provide the Services to Customer. Each party may suspend or terminate the Services or the Agreement upon thirty (30) days' notice to the other party in the event the other party is in material breach of this Agreement and the other party has not cured such breach within such thirty (30) day period. Notwithstanding the previous sentence, Maximum Media may suspend or terminate the Services or the Agreement immediately in the event Customer fails to pay any Fees that are due and payable to Maximum Media or Customer is using the Services or Applications (defined below) in a manner that could harm the Services, the Applications, Maximum Media, or any third party.
- 1.2 If the Agreement is terminated for any reason:
- (a) Customer shall pay Maximum Media within thirty (30) days all fees accrued for the Services prior to the date of termination, provided that if Customer reasonably terminates this Agreement because of Maximum Media's material breach, Maximum Media shall be responsible to refund to Customer unused pre-paid service fees, if any;
- (b) Customer's right to access and use the Services shall be revoked and be of no further force or effect;
- (c) No later than thirty (30) days after termination, Maximum Media may completely erase or delete all Customer Content (defined below), and Maximum Media shall have no obligation to store or make available such Customer Content to Customer;
- (d) Customer agrees to timely return all materials related to the Services to Maximum Media at Customer's expense or, alternatively, upon prior written approval of Maximum Media, provide Maximum Media with an officer's certification of the destruction thereof; and
- (e) all provisions in the Agreement, which by their nature are intended to survive termination, shall so survive, including, without limitation, Sections 8, 9, 10, 11, and 13.
2. FEES AND PAYMENT
2.1 In consideration of the delivery of the Services, Customer shall pay Maximum Media a service fee based on one of the following pricing options that Customer has elected (i) Maximum Media's current hourly rate for streaming content multiplied by the amount of time Customer streams data or content through or using the Services (the "Usage Service Fee"), (ii) Maximum Media's applicable monthly fee (the "Monthly Service Fee") for month-to-month use of the Services, (iii) Maximum Media's applicable semi-annual fee (the "Semi-Annual Service Fee" and each of the Semi-Annual Service Fee, the Usage Service Fee or the Monthly Service Fee constitute a Customer's "Service Fee") for use of the Services for periods equal to 6 months, or (iv) Maximum Media's applicable annual fee (the "Annual Service Fee" and each of the Annual Service Fee, the Usage Service Fee or the Monthly Service Fee constitute a Customer's "Service Fee") for use of the Services for periods equal to 12 months.
- 2.2 If Customer agrees to pay Maximum Media for the Service by paying the Usage Service Fee, Customer will pay for the Service based solely on Customer's use of the Service. If Customer agrees to pay Maximum Media for the Service by paying the Monthly Service Fee, Customer is agreeing to pay for the Service on a month-to-month basis (the "Month-to-Month Service"). Customer agrees that by electing to receive the Month-to-Month Service it will automatically be charged for each additional month until it cancels the Month-to-Month Service in accordance with this Agreement. If Customer agrees to pay Maximum Media for the Service by paying the Semi-Annual Service, Customer is agreeing to pay for the Service for a 6 month period (the "Semi-Annual Service"). Customer's receipt of the Semi-Annual Service will automatically renew for additional 6 month periods at the expiration of the previous period a ("Renewal Semi-=Annual Period"), until Customer cancels the Semi-Annual Service in accordance with this Agreement. If Customer agrees to pay Maximum Media for the Service by paying the Annual Service, Customer is agreeing to pay for the Service for a 12 month period (the "Annual Service"). Customer's receipt of the Annual Service will automatically renew for additional 12 month periods at the expiration of the previous period a ("Renewal Annual Period"), until Customer cancels the Annual Service in accordance with this Agreement.
- 2.3 In addition, Customer may purchase certain other premium services at Maximum Media's then-applicable rate (collectively, the premium fees and the Service Fees, are the "Fees"). Customer will pay all such Fees in accordance with any payment procedures detailed by Maximum Media. Except as expressly set forth in the Agreement, all amounts paid to Maximum Media are nonrefundable. Customer is responsible for all applicable federal, state, local country, provincial or local taxes relating to the Services (including without limitation any value added tax, if applicable), excluding taxes based on Maximum Media's income.
- 2.4 If any amount owing under this or any other agreement for Services is 30 or more days overdue, Maximum Media may, without limiting its other rights and remedies, accelerate unpaid fee obligations under this and such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full. Any invoice that remains unpaid for more than 30 days will accrue interest at a rate equal to the lesser of (i) one and one-half percent (1.5%) per month; and (ii) the maximum interest rate permitted under applicable law, provided that such amount shall not be less than $15 per month unless prohibited by applicable law. Maximum Media will provide at least 7 days' prior notice that Customer's account is overdue before suspending Services for failure to make a timely payment. Customer shall pay all reasonable attorneys' fees and other amounts that Maximum Media incurs in its efforts to collect amounts owed by Customer to Maximum Media.
- 2.5 For the Month-to-Month Service, the Semi-Annual Service and the Annual Service, Customer authorizes Maximum Media to automatically continue to collect the then-applicable Fees and any taxes owed by Customer, using any credit card that Customer has provided to Maximum Media. Customer may cancel automatically-renewing Services by logging into the Website and changing the settings prior to the beginning of a new month for the Month-to-Month Service, a Renewal Semi-Annual Period or a Renewal Annual Period for the Annual Service.
- 2.6 Maximum Media may change the Fee rates by notifying Customer at least sixty (60) days prior to the effective date of such rate increase.
- 2.7 Maximum Media may provide Customer with discounts (a "Discount") for a specified period as set forth in an invoice ("Discount Period"). Upon the expiration of the Discount Period, the Discount shall automatically terminate without any further action by Customer and Customer shall pay Maximum Media's current applicable Fees.
- 2.8 Maximum Media sometimes offers customers promotional use of the services at promotional rates (the "Promotional Offer"). The Promotional Offer will expire on the date set forth by Maximum Media in the applicable invoice describing such Promotional Offer. Upon Customer agreeing to pay the Fees for use of the Services, the Promotional Offer will immediately expire and Customer's Fees will automatically begin to accrue on the date of Customer's agreement to pay such Fees, notwithstanding the end date of the Promotional Offer.
3. TERM AND TERMINATION
3.1 This Agreement commences on the date that Customer first accepts it and continues until it has been terminated.
- 3.2 A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
4. USE OF THE SERVICES; LICENSE
4.1 Subject to the terms and conditions of the Agreement, Maximum Media hereby grants Customer during the Term a limited, revocable, non-exclusive, non-transferable, non-assignable license to use the object code of the software applications that are provided by Maximum Media to enable Customer to use the Services (the "Applications") in the form provided by Maximum Media. The Services contain proprietary trade secret technology of Maximum Media. Unauthorized use and/or copying of the Applications or any component of the Services are prohibited by law, including United States and foreign copyright law. Customer may use the Applications and the software included in the Services in object code form only, and shall not reverse compile, disassemble or otherwise convert such software into uncompiled or unassembled code. Customer may not relicense or sublicense the Services or the Applications, or otherwise permit use of the Services (including timesharing or networking use) by any third party. Customer may not provide service bureau or other data processing services that make use of the Services without the express prior written consent of Maximum Media. No license, right, or interest in any Maximum Media trademark, trade name, or service mark, or those of Maximum Media's licensors or third party suppliers, is granted hereunder.
- 4.2 Customer agrees and acknowledges that Maximum Media retains ownership, as owner or licensee, of all right, title and interest to the Services and the Applications, all of which are protected by copyright and other intellectual property rights, and that, other than the express licenses granted herein, Customer does not obtain and may not claim any rights in or ownership interest to the Services or any associated intellectual property rights therein. Customer agrees to comply with all copyright and other intellectual property rights notices contained on or in any information obtained or accessed by Customer through the Services.
5. CUSTOMER CONTENT; ACCEPTABLE USE
5.1 Customer represents and warrants to Maximum Media that it has the right to publish and disclose or make available Customer's data and other content (the "Customer Content") through the Services. Customer represents and warrants to Maximum Media that the Customer Content will not: (a) infringe or violate any third-party right, including (but not limited to) intellectual property, privacy, or publicity rights; (b) be abusive, profane, or offensive to a reasonable person; or, (c) be hateful or threatening. Further, Customer affirms, represents, and warrants that it owns or has all the necessary licenses, rights, consents, and permissions in and to and to publish the Customer Content it submits. In furtherance of the foregoing, Customer will (i) obtain the consent of all individuals who are visible in the Customer Content to permit Customer to include such individuals' images as part of the Customer Content; (ii) obtain all necessary licenses and consents to ensure it has the right to provide the Customer Content through the Services without violating any third party's rights; and (iii) take all such other actions necessary to comply with the requirements set forth in this Section 5.1.
- 5.2 Customer grants to Maximum Media a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, reproduce, distribute, prepare derivatives works of, display, and perform the Customer Content as part of the Services and in connection with Maximum Media's business. You also grant each user of a Website (a "User") a non-exclusive license to access the Customer Content in accordance with any applicable terms and conditions between such User and Maximum Media. Other than as set forth in this Section 5.2, Customer shall retain all ownership rights in the Customer Content.
- 5.3 Customer shall take all reasonable steps to ensure that no unauthorized persons have access to the Services, and to ensure that no persons authorized to have such access shall take any action that would be in violation of the Agreement.
- 5.4 Customer will not (a) use, or allow the use of, the Services, the Applications or Customer Content in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; (b) introduce into the Services or any Website any virus or other code or routine intended to disrupt or damage the Services or a Website, or alter, damage, delete, retrieve or record information about the Services or its users; (c) excessively overload the Maximum Media systems used to provide the Services; (d) perform any security integrity review, penetration test, load test, denial of service simulation or vulnerability scan on the Services; (e) use any tool designed to automatically emulate the actions of a human user (e.g., robots); or (f) otherwise act in a fraudulent, malicious or negligent manner when using the Services.
Customer acknowledges that it shall be responsible for securing, paying for, and maintaining connectivity to the Services (including any and all related hardware, software, third party services and related equipment and components).
7. SERVICE SUPPORT AND AVAILABILITY
Maximum Media shall: (a) provide basic support for the Services at no additional charge, (b) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (when it shall give at least 8 hours' notice), or (ii) any unavailability caused by circumstances beyond Maximum Media's reasonable control, including without limitation, acts of nature, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, internet service provider failures or delays, or denial of service attacks.
8. DISCLAIMERS OF WARRANTY
MAXIMUM MEDIA HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, GUARANTIES AND REPRESENTATIONS RELATING TO THE SERVICES OR THE APPLICATIONS, EXPRESS AND IMPLIED, ORAL OR IN WRITING, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WHETHER OR NOT ARISING THROUGH A COURSE OF DEALING. THE SERVICES ARE NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED. MAXIMUM MEDIA MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF SOFTWARE OR EQUIPMENT OR ANY RESULTS TO BE ACHIEVED THEREFROM WITH RESPECT TO THE APPLICATIONS OR THE SERVICES.
To the extent permitted by applicable law, Customer agrees to defend, indemnify, and hold harmless Maximum Media, its officers, members, managers, employees, affiliates, and agents against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses, including but not limited to reasonable attorneys' fees arising from: (i) Customer's use of the Services or the Applications; (ii) Customer's breach of this Agreement; (iii) Customer's violation of any third party right, including, without limitation, any copyright, proprietary, publicity, or privacy right or any action or inaction of Customer that has resulted in any tort, injury, damage or harm to any other person; or (iv) any claim that the Customer Content damaged a third party. This defense and indemnification obligation will survive the termination of this Agreement.
10. LIMITATION OF LIABILITY
10.1 MAXIMUM MEDIA WILL NOT BE LIABLE FOR ANY INJURIES CAUSED BY THE USE OF THE SERVICES OR THE APPLICATIONS OR BY ANY ERRORS, DELAYS, INTERRUPTIONS IN TRANSMISSION, OR FAILURES OF THE SERVICES OR THE APPLICATIONS.
- 10.2 THE TOTAL AGGREGATE LIABILITY OF MAXIMUM MEDIA TO CUSTOMER AND/OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES PROVEN BY CUSTOMER, SUCH DIRECT DAMAGES NOT TO EXCEED AN AMOUNT EQUAL TO THE AVERAGE MONTHLY PAYMENTS RECEIVED BY MAXIMUM MEDIA FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE IN WHICH THE CLAIM ARISES MULTIPLIED BY THREE (3).
- 10.3 IN NO EVENT SHALL MAXIMUM MEDIA OR ITS AFFILIATES OR AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM DELAYS OR SERVICES INTERRUPTION, HOWEVER CAUSED, ARISING FROM OR RELATED TO THE SERVICES OR THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, WHETHER BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, AND WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT OR OTHERWISE, AND REGARDLESS OF WHETHER MAXIMUM MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE.
11. CONFIDENTIAL INFORMATION
- 11.1 Each party shall protect the Confidential Information of the other party with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which such party utilizes for its own information of similar character that it does not wish disclosed to the public. Neither party shall disclose to third parties the other party's Confidential Information, or use it for any purpose not explicitly set forth herein, without the prior written consent of the other party. The obligation of confidentiality shall survive for three (3) years after the return of such Confidential Information to the disclosing party or three (3) years after the expiration or termination of the Agreement, whichever is later, as applicable, provided that a receiving party must maintain the confidentiality of any Confidential Information that constitutes a trade secret for so long as the information is a trade secret.
- 11.2 Notwithstanding the foregoing, a party may disclose Confidential Information to the extent required: (a) to any consultants, contractors, and counsel who have a need to know such Confidential Information in connection with the Agreement and are subject to a written confidentiality obligation comparable to the terms set forth in this Agreement (a "Permissible Third Party"), or (b) by a court or governmental agency, or if necessary in any proceeding to establish rights or obligations under the Agreement; provided, that party required to make the disclosure shall, unless legally prohibited, provide the other party with reasonable prior written notice sufficient to permit the other party an opportunity to contest such disclosure. If a party commits, or threatens to commit, a breach of this Section, the other party shall have the right to seek injunctive relief from a court of competent jurisdiction. For Permissible Third Parties that receive Confidential Information from a receiving party, the receiving party will be responsible for the Permissible Third Party's breach of it confidentiality obligation.
- 11.3 The term "Confidential Information" means any and all information, material, documents and data related to the business activities of the other party, including, for Maximum Media, any information related to the Services or the Applications, provided "Confidential Information" does not include any information that (i) is or becomes through no fault of the receiving party part of the public domain; (ii) was already known to the receiving party at the time of disclosure as evidenced by written documents; (iii) is independently developed by the receiving party without reference to any information provided by the disclosing party; or (iv) was obtained by the receiving party from a third party that was not subject to any confidentiality obligations to the disclosing party.
Customer understands that any export of the Applications or related documentation or information may require an export license and Customer assumes full responsibility for obtaining such license. Customer must obtain Maximum Media's prior written consent before exporting the Applications.
13.1 The parties agree that the Services are deemed to be solely based in Ohio and the Website is deemed to be a passive conduit for the Services that does not give rise to personal jurisdiction over Maximum Media, either specific or general, in jurisdictions other than in Ohio.
- 13.2 This Agreement shall be governed by Ohio law, without regard to its conflict of law provisions. The parties consent to the state and federal courts located in Cincinnati, Ohio having exclusive jurisdiction over any claims that arise from or are related to this Agreement, the Applications, or the Services. The parties waive the application of the United Nations Convention on Contracts for the International Sale of Goods as to the interpretation or enforcement of the Agreement.
- 13.3 The invalidity or illegality of any provision of the Agreement shall not affect the validity of any other provision. The parties intend for the remaining unaffected provisions to remain in full force and effect.
- 13.4 Customer shall not assign the Agreement or any license contained herein without the prior written consent of Maximum Media and any purported assignment, without such consent, shall be void. Maximum Media may assign this Agreement without Customer's consent.
- 13.5 All notices given under the Agreement shall be in writing and sent postage pre-paid, if to Maximum Media LLC DBA StreamSpot, to 120 E. 8th Street Suite 3300, Cincinnati, OH 45202, Attn: StreamSpot Customer Department; or if to Customer, to the billing address or contact email address in Maximum Media's records.
- 13.6 No action, regardless of form, may be brought by either party more than two (2) years after the cause of action has arisen.
- 13.7 Nothing contained in this Agreement shall be deemed to create rights in, or to be for the benefit of, persons not a party to this Agreement, other than the successors or permitted assigns of the parties to this Agreement.
- 13.8 The section headings herein are provided for convenience only and have no substantive effect on the construction of the Agreement.
- 13.9 Use of the Service includes the ability to enter into agreements and/or to make transactions electronically. CUSTOMER ACKNOWLEDGES THAT WHEN IT INDICATES ACCEPTANCE OF AN AGREEMENT AND/OR TRANSACTION ELECTRONICALLY, THAT ACCEPTANCE WILL CONSTITUTE ITS LEGAL AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. THIS ACKNOWLEDGEMENT THAT CUSTOMER INTENDS TO BE BOUND BY SUCH ELECTRONIC ACCEPTANCE APPLIES TO ALL AGREEMENTS AND TRANSACTIONS CUSTOMER ENTERS INTO THROUGH THE SERVICE OR WEBSITES.