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TERMS AND CONDITIONS

Private Media Channel Subscription Agreement

THIS SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF OUR WEBSITE, SOFTWARE AND SERVICES WHICH PERMITS THE DEVELOPMENT OF A DEDICATED ONLINE PRIVATE CHANNEL FOR USE BY YOUR BUSINESS OR ORGANIZATION. BY ACCEPTING OF THIS AGREEMENT, EXPRESSLY OR BY USE, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS HEREOF, INCLUDING OUR RIGHT TO MODIFY THESE TERM S IN THE FUTURE.

Table of Contents

  • Definitions
  • Free Trial Periods
  • Purchased Subscriptions
  • Subscription Fees and Payment
  • Use of your Channel
  • Outside Applications
  • Outside Products and Services
  • Proprietary Rights
  • Confidentiality
  • Warranties and Disclaimers
  • Indemnification
  • Limitation of Liability
  • Term and Termination
  • Notices
  • Governing Law and Jurisdiction

DEFINITIONS

“Channel” means the specific limited access web address or addresses assigned by us for use by you in order to post video, written, audio or other content and receive feedback from Users. Access to your Channel shall be made available online via password-protected user logins.

“Channel Software” means our software, the license and use of which is provided to you on a subscription basis for use and access to your Channel.

“Copyright Policy” means our policy for addressing claims of copyright violations, as it may be from time to time amended, a copy of which can be found at http://nichevid.com/Static/CopyRight.aspx.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Outside Applications” means online applications and offline software products that are provided by entities or individuals other than us and that interoperate with our Channel Software. These may include such platforms as Google, Twitter and Facebook.

“Subscription” means the agreement to allow you the use of our services for a fee.

“Subscription Term” means the period for which a Subscription runs.

“User Documentation” means our training, help, how-to and explanatory materials that assist Users in using the Channel product, as such materials may be updated from time to time.

“Users” means individuals who are authorized by you to use your Channel and who have been supplied user identifications and passwords by you (or by us at your request). Users may include but are not limited to your employees, consultants, contractors and agents, and third parties with which you transact business.

“We,” “Us” or “Our” means the Niche Video Media, LLC, a Georgia limited liability company.

“You” or “Your” means the individual, company or other legal entity for which you are accepting this Agreement and Affiliates of that company or entity. If You are an agency purchasing on behalf of your clients, the terms “you” or “your” shall include such clients, provided that you shall be responsible for such clients’ compliance with your obligations under this Agreement, for any breach of those obligations by such clients, and for payment of our fees on behalf of such clients.

“Your Content” means any electronic data, video, audio and written content or information that has not been made publicly available and is submitted by on behalf of you, to your Channel, or is collected and processed by or on behalf of you, through your Channel.

FREE TRIAL PERIODS

We may make one or more of our services available to you on a limited time trial basis free of charge. If we elect to do so, the free trial shall run until the earlier of (a) the end of the free trial period for which you registered to use, or (b) the start date of a Subscription ordered by you. Additional trial terms and conditions may appear on the trial registration web page or other trial registration agreement entered into by you. Any such additional terms and conditions are incorporated into this Agreement by reference.

PURCHASED SUBSCRIPTION

3.1. Provision of a Channel. We shall make a Channel available to you pursuant to this Agreement for a Subscription Term. You agree that the purchase of any Subscription by you is neither contingent on the delivery of any future functionality or features of the Channel Software nor dependent on any oral or written public comments made by us regarding future functionality or features.

3.2. Subscriptions. Unless otherwise agreed to by us, a Channel shall be purchased on a Subscription basis and may be accessed only during the applicable Subscription Term. Any Subscription is for designated Users only. A Subscription may not be shared or used by anyone other than you, except for the provision of your Content to your designated Users.

SUBSCRIPTION FEES AND PAYMENT

4.1. Fees. You shall pay all fees charged for use of your Channel. Our Subscription fees shall be as provided in our pricing schedule, as the same may be modified by us at anytime. Except as otherwise specified herein, (i) fees are based on the license granted and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) charges for existing Subscriptions will not be decreased during the relevant Subscription Term.

4.2. Payment. You will provide our credit card processing partner, Stripe, with valid and current credit card information to collect fees for your Subscription. By providing your credit card information, you are authorizing the charging of such credit card for the applicable fees related to your Channel. Such charges shall be made in advance, in accordance with the billing frequency agreed upon. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.

4.3. Taxes. Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. We are solely responsible for taxes assessable against us based on our income, property and employees.


4.4. Suspension of Service and Acceleration. If any amount owing by you under this or any other agreement for our services is 5 or more days overdue, we may, without limiting our other rights and remedies, accelerate any unpaid fees, if any, under such agreement so that all such obligations become immediately due and payable, and suspend your Subscription until such amounts are paid in full. We will give you at least 5 days’ prior notice that your account is overdue before suspending services to you.

 

5. USE OF YOUR CHANNEL

5.1. Our Responsibilities. During the Subscription Term, we shall provide basic support for your Channel to you at no additional charge. We shall also use commercially reasonable efforts to make your Channel available 24 hours a day, 7 days a week, except for: (a) scheduled downtime (which we shall endeavor to give at least 8 hours prior notice online or via email), or (b) any unavailability caused by circumstances beyond our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, failures, denial of service attacks, or downtime or delays by Internet Service Providers or other third-party providers (such as Vimeo or Amazon Web Services). We shall deposit a copy of the source code for the Channel Software to Open Source Escrow, an escrow company, within thirty days of when we release a new version of the product. If we should cease operating, cease offering a channel product, or cease supporting the Channel Software for more than a year, the escrow company shall release the source code to SourceForge.net as an open source project such that all customers can continue to use it as they have come to rely upon it. Anyone wishing to verify that the latest version is in escrow may contact the escrow company by email at: [email protected].

5.2. Protection of Your Content. We shall not: (a) modify your Content; (b) disclose your Content except as compelled by law in accordance with Section 9.3 below or as expressly permitted in writing by you; or (c) access your Content except to provide technical support, prevent service or technical problems, and (if we deem appropriate) to confirm compliance with the terms of this Agreement.

5.3. Your Responsibilities. You shall: (i) be responsible for your Users’ compliance with this Agreement; (ii) be responsible for the accuracy, quality and legality of your Content and of the means by which you acquired your Content; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of your Channel, and notify us promptly of any such unauthorized access or use; and (iv) use your Channel only in accordance with the User Documentation and applicable laws and government regulations. You shall not: (a) make your Channel available to anyone other than your Users; (b) use your Channel to store, share or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store, share or transmit material in violation of the privacy rights of any third-party; (c) use your Channel to store, share or transmit Malicious Code; (d) interfere with or disrupt the integrity or performance of the Channel Software or third-party data contained therein; or (e) attempt to gain unauthorized access to a Channel or its related systems or networks. If your Channel is configured by you or on your behalf to use cookies to track Users’ online activities, you shall be responsible for providing notice and or obtaining consent, as required by law, for such use of cookies.

5.4. Usage Limitations. Your Channel and your Content may be subject to certain limitations, such as, for example, limits on data storage space, limits on the number of permitted plays of your Content or other usage limits. The level of these restrictions may be different depending upon the subscription plan you purchase. Any such limitations shall be specified in the User Documentation, as the same may be from time-to-time amended by us. If you exceed the applicable limits, we may advise you to reduce your usage so that it conforms to such limits. If you are unable or unwilling to abide by the applicable usage limits, we may require you to adjust your subscription plan to cover your additional usage and/or invoice you for your excess usage based upon our charges then in effect.

OUTSIDE APPLICATIONS

6.1 Integration with Outside Applications. Your Channel may contain features designed to interoperate with Outside Applications. To use such features, you may be required to obtain access to such Applications from their providers. If the provider of any Outside Application ceases to make the application available for interoperation with the corresponding features on reasonable terms, we may cease providing such features without entitling you to any refund, credit, or other compensation.

6.2. Outside Application Interactions and Access. To permit interoperation with Outside Applications, you may be required to provide us with access to your accounts and any websites operated by you or on your behalf to allow us to provide interaction with your Channel. Except for our obligations with respect to your Content, we shall not be responsible or liable for any content accessed or provided by you, your end customers, or their end users from or to any Outside Applications or websites.

OUTSIDE PRODUCTS AND SERVICES 3.13.2013

We or third parties may from time to time make available to you third-party products or services, including but not limited to applications and implementation, customization, and other consulting services which are not owned by us. We do not warrant or support such products or services. No purchase of outside products or services is required to use your Channel except a supported computing device, operating system, web browser, and Internet connection.

PROPRIETARY RIGHTS

8.1. Reservation of Rights in Channel Software. Subject to the limited rights expressly granted hereunder, we reserve all rights, title and interest in and to the Channel Software, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.

8.2 Restrictions. Except with our prior written consent, you shall not: (i) create derivative works based on our Channel Software for use outside your web site linked to the Channel Software; (ii) copy or modify our Channel Software or the implementations of it by any other customer using our Channel Software; (iii) reverse engineer our Channel Software; (iv) access our Channel Software in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of our Channel Software or any other customer using our Channel Software; (v) use your Channel to collect, store or process sensitive personal information, including (a) social security numbers, passport numbers, military numbers, voter numbers, driver’s license numbers, taxpayer numbers, or other government identification numbers; (b) insurance policy or medical account identification numbers, (c) Protected Health Information (as defined in the U.S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder) or similar information under other applicable laws or regulations, or (d) credit card numbers or bank account information or other information governed by the Gramm-Leach-Bliley Act of 1999, as amended, or other comparable law; or (iv) use your Channel for a purpose related to establishing an individual’s eligibility for credit, employment or insurance or for any consumer-initiated transaction as defined in the U.S. Fair Credit Reporting Act or any similar law. You may not access our Channel Software if you are our direct competitor, except with our prior written consent. In addition, you may not access our Channel Software for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes. In addition to any other rights we may have under this Agreement, in the event of a breach of the restrictions set forth above, we may immediately suspend the use of your account.

8.3. Your Content. You shall own all your Content, including all reports, statistics, and other data to the extent generated from your Content, and all intellectual property rights therein. During the Subscription Term, you grant to us the right to use your Content to provide feedback to you concerning your use of the Channel Software. You warrant that your Content, and the manner in which you offer it to your Users, is your own work product and not a copy (in whole or in part) of another User's channel. If we receive notice that your site has copied the intellectual property of another site, we shall respond in accordance with our Copyright Policy.

8.4. Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Channel Software any suggestions, enhancement requests, recommendations, or other feedback provided by you, or other using your Channel relating to the operation of the Channel Software.

8.5. Copyright. Please see our Copyright Protection Policy at http://nichevid.com/Static/CopyRight.aspx for information regarding our compliance with the Digital Millennium Copyright Act of 1998 and similar laws. Any violations of Our Copyright Policy by you may result in the termination of your ability to use the Channel Software.

CONFIDENTIALITY

9.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Channel Software; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.

9.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.

9.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

WARRANTIES AND DISCLAIMERS

10.1. Our Warranties. We warrant that: (i) we have validly entered into this Agreement and have the legal power to do so; (ii) the Channel Software shall perform in substantial accordance with the User Documentation; and (iii) the functionality of the Channel Software will not be materially decreased during a Subscription Term. For any breach of a warranty above, your exclusive remedy shall be as provided in Section 13.3 (Termination for Cause).

10.2. Your Warranties. You warrant that you have validly entered into this Agreement and have the legal power to do so. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity and its affiliates.

10.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.


INDEMNIFICATION

11.1. Indemnification by Us. We shall defend you against any claim, demand, suit, or proceeding made or brought against you by a third party alleging that the use of the Channel Software as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), and shall indemnify you for any damages, attorney fees and costs finally awarded against you as a result of, and for amounts paid by you under a court approved settlement of, a Claim Against You; provided that you (a) promptly give us written notice of the Claim Against You; (b) give us sole control of the defense and settlement of the Claim Against You (provided that we may not settle any Claim Against You unless the settlement unconditionally releases you of all liability); and (c) provide to us all reasonable assistance, at our expense. In the event of a Claim Against You, or if we reasonably believe the Channel Software may infringe or misappropriate, we may in our discretion and at no cost to you (i) modify the Channel Software so that it no longer infringes or misappropriates, without breaching our warranties above, (ii) obtain a license for your continued use of the Channel Software in accordance with this Agreement, or (iii) terminate your Subscription for such Channel upon 30 days’ written notice and refund to you any prepaid fees covering the remainder of the term of Subscriptions after the effective date of termination.

11.2. Indemnification by You. You shall defend us against any claim, demand, suit or proceeding made or brought against us by a third party alleging that your Content, or your use of the Channel Software, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and shall indemnify us for any damages, attorney fees and costs finally awarded against us as a result of, or for any amounts paid by us under a court-approved settlement of, a Claim Against Us; provided that we (a) promptly give you written notice of the Claim Against Us; (b) provide to you all reasonable assistance, at your expense.

11.3. Exclusive Remedy. This Section 11 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

LIMITATION OF LIABILITY

12.1. Limitation of Liability. OUR LIABILITY WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT, YOUR USE OF OUR SITE, OR TERMINATION OR SUSPENSION OF YOUR ACCOUNT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL NOT EXCEED THE LESSER OF $5,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.

12.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

13. TERM AND TERMINATION

13.1. Term of Agreement. This Agreement commences on the date you accept it and continues until all Subscriptions granted in accordance with this Agreement have expired or been terminated. If you elect to use the Channel Software for a free trial period and do not obtain a paid Subscription before the end of that period, this Agreement will terminate at the end of the free trial period.

13.2. Term of Subscriptions. Subscriptions purchased by you commence on the start date and continue for the applicable Subscription Term. All Subscriptions shall automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Subscription Term. The pricing during any such renewal Subscription Term shall be the same as that during the prior term unless we have given you written notice of a pricing increase at least 60 days before the end of such term, in which case the pricing increase shall be effective upon renewal and thereafter.

13.3. Refund upon Termination. Upon any termination for cause by you, we shall refund you any prepaid fees covering the remainder of the term of all Subscriptions after the effective date of termination. In no event shall any termination relieve you of the obligation to pay any fees payable to us for the period prior to the effective date of termination.

13.4. Return of Your Data. Upon request at least 30 days prior to your termination, we will provide you with a copy of your Data from your Channel in a mutually agreed format or delete your Data from the Channel Software except for data held for backup or archival purposes. EXCEPT AS STATED IN THE PRIOR SENTENCE, WE SHALL HAVE NO OBLIGATION TO MAINTAIN YOUR CONTENT AFTER THE EXPIRATION OR EARLIER TERMINATION OF YOUR SUBSCRIPTION. THEREFORE, ANY DATA OR CONTENT ENTERED INTO YOUR CHANNEL BY YOU OR RECEIVED BY YOU IN CONNECTION WITH YOUR USE OF YOUR CHANNEL, AND ANY CUSTOMIZATIONS THAT MAY HAVE BEEN MADE TO YOUR CHANNEL BY YOU DURING ANY FREE TRIAL PERIOD OR SUBSCRIPTION TERM MAY BE PERMANENTLY LOST OR DESTROYED. WE RECOMMEND THAT YOU RETAIN COPIES OF YOUR CONTENT OUTSIDE OUR PLATFORM.

13.6. Surviving Provisions. All provisions herein shall survive any termination or expiration of this Agreement.

NOTICES

You agree that any required notices to you may be sent to the email address you provide at the initial registration of your account. You may contact us by email at [email protected] or by US Mail at Niche Video Media, LLC, 1620 Independance Trl, Cumming, GA, 30040, USA.

GOVERNING LAW AND JURISDICTION 3.13.2013

These Terms of Service shall be governed by the laws of the State of Georgia without regard to the principles of conflicts of law. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Georgia for the purpose of resolving any dispute relating to your access to or use of the Service. Further, you agree that the venue for any actions related hereto shall be Fulton County, Georgia.