TERMS OF SERVICE
WebCast-TV (USA) LLC Service Agreement (Hereinafter referred to as WC-TV)
1.0 Service agreement
1.3: WC-TV reserves the right, at WC-TV. discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the WC-TV Service. Please check these Terms and any Policies periodically for changes. Your continued use of the WC-TV Service after the posting of changes constitutes your binding acceptance of such changes. Except as stated elsewhere, such amended Terms or fees will automatically be effective thirty (30) days after they are initially posted on the WC-TV Service.
2.1: Purpose: All services provided by WC-TV 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 WC-TV will accord with such rules, and agrees to indemnify, defend and hold harmless WC-TV from any claim(s) resulting from or associated with the use of the service, which damages WC-TV, Client or any other party(ies) in any way.
2.2: Maintenance: You hereby acknowledge and agree that WC-TV reserves the right to temporarily suspend services for the purposes of maintaining, repairing, or upgrading its systems and network. WC-TV will use best efforts to notify you of pending maintenance however at no time are they under any obligation to inform you of such maintenance.
2.3: Interruption of Service: You hereby acknowledge and agree that WC-TV will not be liable for any temporary delay, maintenance, outages or interruptions of the Services. Further, WC-TV 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).
2.4: Produced Content:
2.4.1: The WC-TV Service provides a system and method for Producers to produce and distribute authorized live and pre-recorded audiovisual content (the "Audiovisual Content") . Producers may also create their own and personal channels (a "Channel"), which may be displayed through a player, monitor, or any other display feature or hardware now or hereafter in existence, which enables the displaying, performance, usage, reproduction, distribution, and publishing of Audiovisual Content. Any Channel may also be displayed in proximity with other Channels on the Listings pages or in any other way or method determined by WC-TV in its sole discretion. For clarity, and without limiting anything in these Terms, no rights of ownership or otherwise are granted to you in your Channel
2.4.2 The WC-TV Service permits Producers to create, upload and/or display content of their own creations, including Audiovisual Content, written works posted on message boards, chat and blogs, and any other content, including without limitation, videos, music, images, and text (collectively, "Produced Content"). WC-TV does not guarantee any confidentiality with respect to any Produced Content you upload to or create on the WC-TV Service.
2.4.3: You retain all of your ownership rights in your Produced Content. However, by submitting Produced Content to WC-TV, you hereby:
(i) grant WC-TV a perpetual, worldwide, non-exclusive, royalty-free, fully paid-up, sub-licensable through multiple tiers and freely transferable license to display, perform, use, reproduce, distribute, publish, create derivative works of, display, perform, sell, edit, and otherwise exploit your Produced Content in connection with the WC-TV Service and WC-TV. (and its successor.‘s business, including without limitation for promoting and redistributing your Produced Content or part of or all of the WC-TV Service (and derivative works thereof) in any media formats, media channels or medium now or hereafter in existence. For the avoidance of doubt, the foregoing license includes, but is not limited to, the right to reproduce, distribute, display, perform, make derivative works from or otherwise exploit your Produced Content in proximity with or in connection with any third party content; and
2.4.4: You are solely responsible for all of your Produced Content and you hereby recognize and affirm that the WC-TV Service is merely providing you the means to produce and distribute your Produced Content. Accordingly, you shall be solely responsible for your own Produced Content and the consequences of posting or publishing it. You hereby affirm, represent, and warrant that:
(i) You are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize WC-TV and WC-TV's Users to use and distribute Your Produced Content as necessary to exercise the rights and licenses granted by you in these Terms and in the manner contemplated by WC-TV and these Terms;
(ii) Your Produced Content does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) slander, defame, libel, or invade the right of privacy, publicity or other rights of any person or entity; and
(iii) Your Produced Content does not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of the WC-TV Service.
2.4.5: You understand that when using the WC-TV Service, you will be exposed to Produced Content from a variety of sources, and that WC-TV is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Produced Content or other content. You further understand and acknowledge that you may be exposed to Produced Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against WC-TV with respect thereto. WC-TV does not endorse any Produced Content or any opinion, recommendation, or advice expressed therein, and WC-TV expressly disclaims any and all liability in connection with the Produced Content.
2.4.6: For the avoidance of doubt, you are not entitled to any compensation from WC-TV for any Audiovisual Content for any reason.
2.5: Regulation of certain content WC-TV will be the sole arbiter as to what constitutes a violation of this provision. Client agrees to indemnify, defend and hold harmless WC-TV from any such claim(s).
2.7: 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.
3.0 Fees & Payment
3.1: Credit Card Authorization: The Producer authorizes WC-TV to charge their credit card(s) listed in this order for all charges in connection with their monthly subscription. It also permits WC-TV to collect other charges if the Producer elects to do so by ticking the box on the Hosting, Streaming Credit and other pages. If Producer has multiple credit cards listed within their account, Producer authorizes WC-TV to charge any and all credit cards listed in this order for all charges for these services. Producer agrees to maintain such account to ensure such payments. Time is of the essence in connection therewith. Producer may request that WC-TV maintain multiple credit cards on file to ensure continued service. Producer acknowledges that non-payment may, at the discretion of WC-TV result in immediate suspension or termination of the service and deletion of its material. Credit Card Declines will be charged a service fee of $20.00 per failure after the first failure in any given billing cycle. This includes any and all billings but is not limited to daily billings, package upgrade as well as each time a Producer requests us to try the card again. There are no exceptions. All Services will be removed from account upon deactivation including but not limited to, Pay Per View, etc. Producer is responsible to re-setup all Add On Services when payment is received and account is reactivated. It is the sole responsibility of Producer to maintain active and in good standing Credit Card Accounts. WC-TV may make attempts to contact Producer if their Credit Card fails however WC-TV is NOT required to contact Producer if their Credit Card fails. Producer agrees to pay all costs of reinstatement. Producer is required to fax all Credit Card information to WC-TV if monthly charges exceed $500.00. This is required to continue service. WC-TV will E-mail Producer requesting this fax.
3.2: Hosting Plans: Monthly or Quarterly Hosting Plans are collected on the 1st of each month or 3 months dependent on the plan purchased. The producer's credit card will be automatically debited as detailed in the previous paragraph with an amount equal to that as detailed on the current WC-TV price list. Producers will be advised of any changes to the price list 1 month before the new rates come into effect.
3.3: Up-Grade Hosting Plan: When a Producer wishes to Upgrade their Hosting Plan, a revised subscription fee is calculated for the current month and the Producer is requested to confirm the Upgrade. An adjustment Charge is made immediately using his credit card. Should the Producer have elected to choose the automatic top up facility for this service, then the Producer authorizes WC-TV to purchase the next sized package up from their current plan, and charge their credit card with an amount equal to that as detailed on the current WC-TV price list.
3.4: Down-Grade Hosting Plan: A downgrade can only occur at the end of the billing cycle. No credit will be given for the period from notification till the end of the month.
3.5: Purchase of additional Streaming Credit: Streaming Credit is purchased on a Roll-over basis for a period on one year from the date the first paid plan was purchased. Streaming Credit may be purchased at any time at the discretion of the Producer. Payment will be immediate and the Producer will be requested to authorize payment. Should the Producer have elected to choose the automatic top up facility for this service, then the Producer authorizes WC-TV to purchase a similar package to that which was last purchased and charge their credit card with an amount equal to that as detailed on the current WC-TV price list.
3.6: Trial accounts: It is solely the responsibility of Producer to monitor their account and to make sure they do not exceed the limits of a trial account. There is no automatic facility available with a trial account. Trial accounts are limited to 100GB and can only be used for testing and cannot be used for commercial purposes. A Producer member may not create more than one account in any 12 month period unless prior agreement has been agreed with WC-TV. Trial accounts can be terminated without notice if a member is found to be abusing the limits of the account.
3.7: Termination: As stated under Section 9 of this agreement, it is the responsibility of the Producer to advise WC-TV by email of their wish to terminate their account before the second to last day of the billing cycle. A confirmation e-mail will be sent by WC-TV. No refunds are given on cancellation of the Producers Account. Providing the Producers e-mail is received by the due date, any subscription charged for the following month will be credited to the producers account within 7 days.
4.0 Intellectual Property
4.1: Ownership of Materials; Limited License:
4.1.1: The data and materials on the WC-TV Service, except the Produced Content (as defined below), including, without limitation, the text, graphics, interactive features, logos, photos, music, videos, software, and all other audible, visual or downloadable materials, as well as the selection, organization, coordination, compilation and overall look and feel of the WC-TV Service (collectively, the "Materials") are the intellectual property of WC-TV, its licensors and its suppliers. The Materials are protected by copyright, trade dress, patent, trademark and other laws, international conventions and proprietary rights and all ownership rights to the Materials remain with WC-TV, its licensors or its suppliers, as the case may be. All trademarks, service marks, and trade names are proprietary to WC-TV or its affiliates and/or third party licensors. Except as expressly authorized by WC-TV, You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make use of the Materials. If, with authorization, you download or print a copy of the Materials for personal use, you must retain all copyright, trademark, or other proprietary notices. WC-TV reserves all rights not expressly granted in and to the WC-TV Service and the Materials.
4.1.2: Subject to your compliance with the terms and conditions set out in these Terms, WC-TV hereby grants you a personal, limited, non-exclusive, non-transferable, freely revocable license to use the WC-TV Service for the non-commercial production, streaming and viewing of authorized LinearTV (as defined below).
4.2: Subscription, Accounts and Passwords:
4.2.1: If you become a producer member and create an account on the WC-TV Service, you agree to be responsible and/or liable for:
(i) maintaining the confidentiality of passwords or other account identifiers which you choose; and
(ii) all activities that occur under such password or account identifiers.
4.2.2: You agree to notify WC-TV of:
(i) any loss of your password or account identifiers; and
(ii) any unauthorized use of your password or account identifiers.
4.2.3: Without limiting anything in these Terms, WC-TV will not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, your failure to comply with this Section 4.
4.3: Copyright policy:
4.3.1: WC-TV operates a clear copyright policy in relation to any Producer Submissions which are alleged to infringe the copyright of a third party. Details of that policy can be found in WC-TV's Copyright Policy
4.3.2: As part of WC-TV's copyright policy, WC-TV will suspend a Channel producer's access to the Website if a Channel Producer has been determined to be a repeat infringer. A repeat infringer is a Channel Producer who has been notified of infringing activity more than four times.
5.1: 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: WC-TV 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. 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.
6.1.1: Each party warrants and represents that: (i) it has the legal right to enter into this Agreement and perform its obligations hereunder; and (ii) the performance of its obligations hereunder will not violate any applicable U.S. laws or regulations or cause a breach of any agreements with any third parties. In addition, Producer warrants and represents that the performance of its obligations and use of the Services by Producers will not violate any applicable laws or the WC-TV Acceptable Use Policy Guidelines, available at http://www.webcast-TV.com/
6.1.2: WC-TV, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, AND SUPPLIERS MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER TO YOU OR ANY OTHER PERSON RELATING IN ANY WAY TO THE WC-TV SERVICE AND DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WC-TV, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, AND SUPPLIERS DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY (I) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (II) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS; (III) WARRANTIES RELATING TO DELAYS, INTERRUPTIONS, ERRORS, OR OMISSIONS IN THE WC-TV SERVICE, OR ANY PART THEREOF; (IV) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE WC-TV SERVICE; (V) WARRANTIES RELATING TO THE ACCURACY OR CORRECTNESS OF DATA ON THE WC-TV SERVICE; AND (VI) OTHER WARRANTIES RELATING TO PERFORMANCE, NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS OF WC-TV, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, OR SUPPLIERS .
FURTHER, AND WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, WC-TV MAKES NO WARRANTY THAT THE WC-TV SERVICE WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON. THE WC-TV SERVICES MAY BE LIMITED BY MANY FACTORS, INCLUDING INHERENT RISKS OF THE INTERNET.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WC-TV OR THROUGH THE WC-TV SERVICE WILL CREATE ANY WARRANTY. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE WC-TV SERVICE (INCLUDING RSS FEEDS) OR ANY THIRD-PARTY SERVICES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES OR IMPLIED WARRANTIES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, WC-TV., AND ITS OFFICERS., DIRECTORS., EMPLOYEES., AFFILIATES., AGENTS., LICENSORS., AND SUPPLIERS. LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
6.1.3: In addition to any other remedies available at law or in equity, breach of any of the warranties set forth in Section 6.1.1 shall constitute a material breach of this Agreement subject to immediate termination or suspension of the Service(s) pursuant to the terms of this Agreement. Notwithstanding any contrary term contained herein, Producer’s sole remedy for WC-TV’ breach of any of the warranties set forth in Section 6.1.1 is (i) termination of this Agreement pursuant to the terms of this Agreement; and (ii) return of all unused fees as paid to WC-TV for any terminated Service(s).
6.2: Exclusion of Warranties
6.2.1: Nothing in the Terms shall affect any statutory rights which you are always entitled to as a consumer and that you cannot contractually agree to alter or waive.
7.0 Limitation of Liability
7.1: Limitation of Liability; Force Majeure
7.1.1: Producer acknowledges and agrees that Producer shall bear sole responsibility for adequate security, protection and backup of the Producer Content, Producer Technology1 and Producer Equipment2. WC-TV disclaims all responsibility or liability to Producer for unauthorized access or use, corruption, deletion, destruction or loss of any Producer Content, Producer Technology or Producer Equipment.
7.1.2: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WC-TV, ITS SUBSIDIARIES, ITS ASSOCIATED COMPANIES, OR SUPPLIERS BE LIABLE TO PRODUCER FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOSS OF GOODWILL, PROFITS OR SAVINGS, LOSS OF DATA, DOWNTIME, DAMAGE TO OR REPLACEMENT OF EQUIPMENT AND PROPERTY ARISING FROM ANY CLAIMS WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT TORT), OR OTHERWISE IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF OR INABILITY TO USE THE SERVICES, INTEROPERABILITY OF PRODUCER EQUIPMENT OR APPLICATIONS, PERFORMANCE OR NONPERFORMANCE HEREUNDER OR IN CONNECTION WITH ANY CLAIM ARISING FROM THIS AGREEMENT EVEN IF Producer, ITS SUBSIDIARIES, ITS ASSOCIATED COMPANIES, OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
7.1.3: NOTWITHSTANDING ANYTHING CONTAINED TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL WC-TV, ITS SUBSIDIARIES, ASSOCIATED COMPANIES, OR SUPPLIERS, BE LIABLE TO Producer OR ANY USERS UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE TOTAL FEES RECEIVED BY WC-TV UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH CLAIM.
7.1.4: NEITHER PARTY SHALL BE LIABLE FOR AND WILL NOT BE RESPONSIBLE TO THE OTHER FOR ANY DELAY OR FAILURE TO PERFORM UNDER THIS AGREEMENT IF SUCH DELAY OR FAILURE RESULTS FROM ANY ACT OR CAUSE BEYOND THE REASONABLE CONTROL OF THE AFFECTED PARTY, SUCH AS, BUT NOT LIMITED TO, FIRE, EXPLOSION, THIRD PARTY LABOR DISPUTE, EARTHQUAKE, TERRORISM, CASUALTY OR ACCIDENT, LACK OR FAILURE OF TRANSPORTATION FACILITIES AND/OR SERVICES, LACK OR FAILURE OF TELECOMMUNICATIONS FACILITIES AND/OR SERVICES INCLUDING INTERNET SERVICES, EPIDEMIC, FLOOD, DROUGHT, OR BY REASON OF WAR, REVOLUTION, CIVIL COMMOTION, BLOCKADE OR EMBARGO, ACT OF GOD, ANY INABILITY TO OBTAIN OR RETAIN ANY REQUISITE LICENSE, PERMIT OR AUTHORIZATION, OR BY REASON OF ANY LAW, PROCLAMATION, REGULATION, ORDINANCE, DEMAND OR REQUIREMENT OF ANY GOVERNMENT, OR BY REASON OF ANY COMPUTER VIRUSES OR WORMS, “DENIAL OF SERVICE” ATTACKS, DNS SPOOFING ATTACKS AND/OR OTHER HACKING ATTACKS OF A SIMILAR NATURE (PROVIDED THAT BOTH PARTIES HAVE TAKEN REASONABLE STEPS TO PREVENT SUCH HACKING ATTACKS), OR BY REASON OF ANY OTHER CAUSE WHATSOEVER, WHETHER SIMILAR OR DISSIMILAR TO THOSE ENUMERATED, BEYOND THE REASONABLE CONTROL OF THE AFFECTED PARTY; PROVIDED, HOWEVER, THAT PRODUCER SHALL NOT, BY REASON OF SUCH ACT OR CAUSE, BE RELIEVED OF ITS OBLIGATION TO MAKE ANY REQUIRED PAYMENTS THAT ARE THEN DUE TO WC-TV OR THAT MAY BECOME DUE FROM PRODUCER’S CONTINUED USE OF THE SERVICES.
NOTWITHSTANDING ANY CONTRARY PROVISION CONTAINED HEREIN, FAILURE OF EITHER PARTY TO PERFORM UNDER THIS AGREEMENT BECAUSE OF THE OCCURRENCE OF AN EVENT OF FORCE MAJEURE LASTING MORE THAN FORTY-FIVE (45) DAYS SHALL, UPON TWENTY-FOUR (24) HOURS’ WRITTEN NOTICE TO THE OTHER PARTY, CONSTITUTE A GROUNDS FOR TERMINATION OF THE AFFECTED SERVICE(S) AND APPLICABLE SCHEDULE(S) ONLY. UPON ANY SUCH TERMINATION, PRODUCER SHALL BE ENTITLED TO THE RETURN OF ALL UNUSED FEES PAID TO WC-TV FOR THE TERMINATED SERVICE(S).
1 “Producer Technology” means Producer’s proprietary technology, including Producer’s internet operations design, Producer Content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), trade secrets and any related intellectual property rights throughout the world (whether owned by Producer or licensed to Producer from a third party), together with any derivatives, improvements, enhancements or extensions of Producer Technology conceived, reduced to practice or developed during the term of this Agreement solely by Producer without reference to the WC-TV Technology.
2 “Producer Equipment” means any computer hardware, not including stored data, and other tangible equipment owned or otherwise controlled by Producer.
8.1: Producer agrees to indemnify, defend and hold harmless WC-TV its affiliates and their respective directors, officers, employees, agents, successors and assigns (each a WC-TV Indemnity”) from and against any and all costs, liabilities, losses and expenses (including, but not limited to, reasonable attorneys' fees) (collectively “Losses”) arising out of any claim, suit, action or proceeding (each an “Action”) brought by a third party against a WC-TV Indemnity, regardless of the form of action, whether in contract, tort, warranty or strict liability, in respect of (i) copyright infringement or any manner of intellectual property claims, defamation claims, claims of publication of obscene, indecent, offensive, racist, unreasonably violent, threatening, intimidating or harassing material, or claims of infringement of data protection legislation, based on (1) the Producer Content or any other content or information transmitted by the Producer using the WC-TV Service; (2) the use and/or publication of all communications or information transmitted by the Producer using the WC-TV Service; or (3) Producer's misuse of the Service; and (ii) negligence or will-full misconduct.
8.2: WC-TV reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify WC-TV, and you agree to cooperate with WC-TV. In the defense of these claims. This means that if WC-TV is sued because of a Channel Producers activity, the Channel Producer will pay any damages awarded against WC-TV, plus all costs and attorney's fees.
9.0 Term & Termination
9.1: Termination of Service for Producers Non Payment: Services will be suspended or terminated on the payments due date if Producer fails to pay any amount when due. The contents may be deleted at the discretion of WC-TV. All Add On Services will be removed from account upon deactivation including but not limited to, Pay Per View, etc. Producer is responsible to re-setup all Add On Services when payment is received and account is reactivated. WC-TV reserves the right to terminate any Producer Account and any and all services for any reason including multiple non-payments. WC-TV reserves the right to terminate or cancel any of its services at any time without prior notice. WC-TV will use best efforts to notify affected Producer(s) to prevent any interruption of service and will make all reasonable efforts to offer Producer(s) comparable options that will enable WC-TV to continue service. A waiver of this or any other provision by WC-TV does not constitute a continuing waiver or a waiver of any other of WC-TV's rights at law or in equity.
9.2: Termination of Service for Channel Producers infringement of Acceptable Use Policy Guidelines:
As stated in WC-TV's Acceptable Use Policy Guidelines, if WC-TV considers that a Producer has infringed this policy then WC-TV at its sole discretion, for any reason, and without penalty, may suspend or terminate any account (or any part thereof) you may have with WC-TV or your use of the WC-TV Service and remove and discard all or any part of your account, User profile, and any Produced Content, at any time. WC-TV may also at its sole discretion and at any time discontinue providing access to the WC-TV Service, or any part thereof (including without limitation all Materials), with or without notice. You agree that any termination or suspension of your access to the WC-TV Service or any account you may have or portion thereof may be effected without prior notice, and you agree that WC-TV will not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies WC-TV may have at law or in equity. As discussed herein;
9.3: Cancellation of Service by Client: Client shall have the right to terminate service unless a WC-TV Written Agreement specifies otherwise. Prior to cancellation of service, Client is responsible for removing their materials from their allotted space on WC-TVs servers. WC-TV will not be responsible for storage and preservation of Producer's materials at any time. Producer is responsible to cancel service when service is no longer required. WC-TV reserves the right to bill all active accounts that have not been cancelled by Producer. NO refunds will be given due to Producer's failure to cancel service. WC-TV is not responsible for multiple charges on Producer's Credit Card due to account(s) remaining active. It is the sole responsibility of Producer to De-activate account(s) and confirm that their Credit Card is not being billed. WC-TV 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 Producer Credit Card(s) on file.
9.4: Effective Date of Cancellation: Upon receipt of written notice from Producer, followed by written acknowledgment from WC-TV to cancel the service, the Effective Date of Cancellation for all non contract or any non specifically agreement 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 WC-TV 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).
10.2: Notices: All notices permitted or required under this Agreement must be in writing and shall be delivered as follows with notice deemed given as indicated (I) by personal delivery, (ii) by overnight courier upon written verification of delivery, (iii) facsimile transmission when confirmed by facsimile transmission, or (iv) by certified or registered mail, return receipt requested, five days after deposit in the mail. (v) Email. Notice will be deemed given twenty-four hours after email is sent, unless WC-TV is notified that the email address is invalid. All notices must be sent to the addresses first specified above or to such other address that the receiving party may have provided for the purpose of notice in accordance with this section.
10.3: Non- Solicitation. During the term of this Agreement and continuing through the first anniversary of the expiration or termination of this Agreement, the Producer shall ensure that its affiliates do not directly, or indirectly solicit or attempt to solicit for employment any persons employed by WC-TV or contracted by WC-TV to provide Services to Producer.
10.4: Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
10.5: Relationship of Parties. Neither this Agreement nor the parties' business relationship established hereunder will be construed as a partnership, joint venture or agency relationship or as granting a franchise. Neither Party will attempt to, or will have the right to, legally obligate the other Party.
10.6: No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement there are no third-party beneficiaries to this Agreement, including but not limited to the insurance providers for either Party or the customers of Producer.
10.8: Release for disputes between users.
WC-TV does not control the actions of its Users. If you have a dispute with one or more Users, you release WC-TV (and WC-TV.‘s officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
10.9: Waiver and Severability
10.10: Entire Agreement. 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(modified document) signed by the party against whom enforcement is sought.