AWCAST.COM LLC SERVICE AGREEMENT (Hereinafter “AW”)
1) Credit Card Authorization: It is clients responsibility to keep their account up to date and paid using clients Paypal account. Client agrees to maintain a Paypal account to ensure such payments. Time is of the essence in connection therewith. Client acknowledges that nonpayment will result in immediate suspension or termination of the service.
2) Purpose: All services provided by AW may be used for lawful purposes only. Transmission or storage of any information, data or material in violation of any United States law is prohibited. This includes, but is not limited to: copyrighted material, material legally judged to be threatening or obscene, or material protected by trade secret and other statue. Client warrants and represents that all material it provides to AW will accord with such rules, and agrees to indemnify, defend and hold harmless AW from any claim(s) resulting from or associated with the use of the service, which damages AW, Client or any other party(ies) in any way.
3) Regulation of Certain Content: AW is a mere distributor and is relying on Client to prescreen and editorially control the content of Client’s Web Page, if any, and the audio and/or video stream. AW reserves the right to request the removal of information in the Web Page or in the audio and/or video streams brought to its attention which it deems detrimental to AW or any person. Client agrees not to include in the Web Page or in the audio and/or video stream any technology, information or material which violates or infringes any patent, trademark, copyright, trade secret or any other rights of any person, firm or corporation, or which a reasonable person would consider abusive, profane or offensive, which is defamatory or harassing, or which violates or encourages others to violate any applicable law. AW reserves the right to refuse service to anyone, in its sole discretion. Client will not disseminate any illegal movies or graphic images. To protect itself, AW may without liability actively cooperate with and furnish identifying and supporting information to any person likely to be harmed by Client’s violation of these provisions and to any law enforcement agency serving a warrant or subpoena on AW. AW will be the sole arbiter as to what constitutes a violation of this provision. Client agrees to indemnify, defend and hold harmless AW from any such claim(s).
4) Warranties: AW makes no warranties of any kind, whether expressed or implied, for the service it is providing. AW also disclaims any warranty, express or implied, of merchantability or fitness for a particular purpose. AW will not be responsible for any damage suffered. This includes loss of data resulting from delays, non deliveries, mis deliveries, or service interruptions caused by AW’s negligence or the subscriber’s errors or omissions. Use of any information obtained via AW is at your own risk. AW specifically denies any responsibility for the accuracy or quality of information obtained through its services.
5) Interruption of Service:
You hereby acknowledge and agree that AW will not be liable for any temporary delay, outages or interruptions of the Services. Further, AW shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).
You hereby acknowledge and agree that AW reserves the right to temporarily suspend services for the purposes of maintaining, repairing, or upgrading its systems and network. AW will use best efforts to notify you of pending maintenance however at no time is under any obligation to inform you of such maintenance.
7) Termination of Service: Services will be suspended or terminated on the payments due date if Client fails to pay any amount when due. The contents will be deleted and will require then current encoding and upload charges to reinstate the material. All Add On Services will be removed from account upon deactivation including but not limited to, Pay Per View, Advanced Link Protection, Simulated Live Services, etc. Client is responsible to re-setup all Add On Services when payment is received and account is reactivated. AW reserves the right to terminate any customer and any and all services for any reason. AW reserves the right to terminate or cancel any of its services at any time without prior notice. AW will use best efforts to notify affected Client(s) to prevent any interruption of service and will make all reasonable efforts to offer Client(s) comparable options that will enable AW to continue service. A waiver of this or any other provision by AW does not constitute a continuing waiver or a waiver of any other of AW’s rights at law or in equity.
8) Upgrading or Downgrading Services:
a) Streaming Media Services may be upgraded or downgraded at anytime via e-mail and will take effect beginning on the next billing date. All charges incurred prior to the next billing date will be billed at the current service plan rates. The new rates will take effect on the first day of your next billing cycle.
9) Nonsolicitation: During the Term hereof and for a period of two (2) years thereafter, Client agrees not to hire, solicit nor attempt to hire or solicit the services of any employee, subcontractor or vendor of AW without the prior written consent of AW. Both parties agree to bind their respective employees to adhere to the provisions of this section, as well as the provisions of sections 9(a)(Confidentiality) and (b)(Trade Secrets) below.
10) Force Majeure: AW is excused from any failure or delay in performance of responsibilities otherwise imposed by this Agreement for any cause beyond its reasonable control. Such causes shall include without limitation fires, floods, storms, earthquakes, civil disturbances, disruption of telecommunications, transportation, utilities or necessary supplies, governmental action, computer viruses and incompatible or defective equipment, software or services not supplied by AW. Nothing herein enlarges any warranty or diminishes any disclaimer provided in Section 4(“Warranties”).
11) Confidentiality and Trade Secrets: a) Confidentiality: Each party hereby acknowledges that it may be exposed to confidential and proprietary information belonging to the other party or relating to its affairs, including without limitation technical information and development techniques, business and financial information, visitor lists and other information designated by a party as confidential or proprietary. Confidential Information does not include (i) information already known or independently developed by the recipient; (ii) information in the public domain through no wrongful act of the party, or (iii) information received by a party from a third party who was free to disclose it. Each party agrees that during the Term and at all times thereafter it shall not use, commercialize or disclose the other party’s Confidential Information except in performing its obligations under this Agreement. Each party shall use the same degree of care in safeguarding the other party’s Confidential Information as it uses in safeguarding its own Confidential Information, but in no event shall it use less than due diligence and care. Neither party shall alter or remove from any Confidential Information of the other party any proprietary, copyright, trademark or trade secret legend. b) Trade Secrets: AW represents that its hardware and software configurations are trade secrets. Client shall not access internal components of hardware; source codes or object codes of software or any other internal hardware or software configurations by either direct means or by means of any process of reverse engineering. Client agrees that by failing to comply with this provision, it shall be assessed a penalty of not less than $10,000.00. By assessing this penalty AW does not waive its right to use any other legal remedy Available to them including the remedies set forth in §30-14-410 et. seq. The Uniform Trade Secrets Act.
12) Injunctive Relief: The parties acknowledge that violation by one party of the provisions of Section 9(“Confidentiality”) or Section 7(“Nonsolicitation”) would cause irreparable harm to the other party not adequately compensable by monetary damages. In addition to other relief, it is agreed that temporary and permanent injunctive relief shall be Available without necessity of posting bond to prevent any actual or threatened violation of such provisions.
13) Limitation of Liabilities: The following provisions are a material condition of this Agreement and reflect a fair allocation of risk: a) Remedies. Client agrees that if AW violates any warranty or other provision of this Agreement, and AW determines that repair or other corrective action is not economically or technically feasible, Client’s sole and exclusive remedy will be to seek a refund of up to the amount paid by Client to AW for services rendered hereunder during the previous one (1) month.
b) Liabilities. AW IS NOT LIABLE FOR ANY AMOUNT EXCEEDING THE PRICE PAID BY CLIENT FOR SERVICES HEREUNDER DURING THE ONE (1) MONTH PRECEDING THE EVENT GIVING RISE TO ANY CLAIM. IN NO EVENT SHALL AW BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAWINGS OR PROFIT, LOST DATA, BUSINESS INTERRUPTION OR ATTORNEYS FEES) EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY.
14) Disputes, Choice of Law: Except actions for certain injunctive relief authorized under Section 10(“Injunctive Relief”) which may be brought in a court of competent jurisdiction at any time, the parties agree that all disputes shall be submitted to a single arbitrator for binding arbitration under proceedings conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award of the arbitrator shall be limited to remedies otherwise available in court and shall include a written explanation of the decision. The disputants shall equally share in the costs incurred by invoking the arbitration process. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE UNITED STATES ANDMASSACHUSETTS FOR AGREEMENTS ENTERED INTO AND TO BE WHOLLY PERFORMED THEREIN, AND ANY ACTION SHALL BE INITIATED AND MAINTAINED IN A FORUM OF COMPETENT JURISDICTION INMASSACHUSETTS.
15) Export Regulations: The transfer of technology across national boundaries is regulated by the US Government. Client agrees not to export or re-export (including by way of electronic transmission) any data or technology derived from its Web Page, if any, or its audio and/or video stream without first obtaining any required export license or governmental approval. Client shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by US regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the US Department of Commerce. This provision and the assurances made herein shall survive termination of this Agreement.
16) Cancellation of Service by Client: Client shall have the right to terminate service unless an AW Written Agreement specifies otherwise. Prior to cancellation of service, Client is responsible to cancel service when service is no longer required. AW reserves the right to bill all active accounts that have not been canceled by Client. NO refunds will be given due to Clients failure to cancel service. AW is not responsible for multiple charges on Clients Credit Card due to account(s) remaining active. It is the sole responsibility of Client to Deactivate account(s) and confirm that their Credit Card is not being billed. AW reserves the right to immediately collect, up to the total of any charges associated with the account(s) that have not been satisfactorily paid by charging the clients Credit Card(s) on file.
17) Effective Date of Cancellation: Upon receipt of written notice from Client, followed by written acknowledgment from AW to cancel the service, the Effective Date of Cancellation for all non contract or any non specifically agreed upon accounts shall be the end of the current billing cycle. No refunds will be made for the current billing cycle. All monies due, but not limited to, for Bandwidth, Server Space, Website Hosting and all other services offered by AW are due upon cancellation of service. All signed contracts or agreements must be paid in full prior to cancellation. All monies due, but not limited to, related to signed contracts and agreements for the FULL term of the contract or agreement must be paid in full without exception prior to cancellation or deactivation of account(s).
18) Notices: All notices given hereunder must be in writing and transmitted by E-mail,Fax,US Mail, return receipt requested, or special courier service (Fed Ex, UPS, etc.).
19) Copyright Policy: AW does not, and cannot, control what content is available to you using the AW Network. AW Clients decide what content to make available to others using the AW network and what content to download. Clients are responsible for complying with all applicable federal and state laws applicable to such content, including copyright laws.
AW respects copyright law and expects our Clients to do the same. Unauthorized copying, distribution, modification, public display, or public performance of copyrighted works is an infringement of the copyright holders’ rights. As a condition to your account with AW, you agree that you will not use the AW service to infringe the intellectual property rights of others in any way. AW will terminate the accounts of Clients who are repeat infringers of the copyrights, or other intellectual property rights, of others. In addition, AW reserves the right to terminate the account of a Client upon any single infringement of the rights of others in conjunction with use of the AW service, or if AW believes that a Clients conduct is harmful to the interests of AW, its affiliates, or other Clients, or for any other reason in AW’s sole discretion, with or without cause. AW reserves the right, with or without cause, to discontinue service at anytime for any reason with or without contacting AW’s Client.
In accordance with the Digital Millennium Copyright Act of 1998 (the text of which may also be found on the U.S. Copyright Office web site at http://lcweb.loc.gov/copyright/, AW will respond expeditiously to claims of copyright infringement committed using the AW service that are reported to AW’s ‘Designated Copyright Agent’ identified below. If you are a copyright owner, or authorized to act on behalf of an owner of the copyright or of any exclusive right under the copyright, please report your notice of infringement by completing the following notice form and delivering it to the Designated Copyright Agent:
NOTICE OF ALLEGED INFRINGEMENT OF COPYRIGHT
1. Identity of the copyrighted work that you claim has been infringed, or, if multiple copyrighted works are covered by this Notice, a representative list of the copyrighted works that you claim have been infringed using the AW service:
2. Identification of the material that you claim is infringing:
3. Your street or mailing address, telephone number, and, if available, email address:
4. I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g. fair use).
5. I hereby state that the above information in this Notice is accurate and, under penalty of perjury, that I am the copyright owner, or authorized to act on behalf of the owner of the copyright or of any exclusive right under the copyright.
6. Electronic or physical signature of the copyright owner or of a person authorized to act on behalf of the owner of the copyright or of any exclusive right under the copyright:
Full legal name:__________________________________
All claims of copyright infringement should be delivered to the following ‘Designated Copyright Agent’ of AW:
217 West Main St.
Cut Bank, MT. 59427
20) Miscellaneous: This is the entire Agreement between the parties. This Agreement supersedes all previous representations, understandings or agreements and shall prevail notwithstanding any variance with terms and conditions of any order submitted. This Agreement may be modified or amended only by a writing signed by the party against whom enforcement is sought. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Heading are for reference purposes only and have no substantive effect. Each party is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Use of AW’s services constitutes acceptance of this Agreement. All other terms shall be negotiated in good faith.