Terms of Use

VIDEOKAST TERMS AND CONDITIONS

PLEASE READ THIS AGREEMENT CAREFULLY. TO COMPLETE YOUR ORDER FOR THE PRODUCT/AND OR SERVICE YOU'VE REQUESTED, YOU MUST FIRST READ AND ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT ("AGREEMENT"). SUBMISSION OF YOUR ORDER CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS.

Section 1.1. Purpose of Site. VIDEOKAST STREAMING MEDIA SERVICES, hereby called ("VIDEOKAST"), is a Service Provider and host of business and personal streaming media and related components to be used to supplement the user's ("Customer's") web site. VIDEOKAST's services include, but are not limited to: the conversion of Customer's multimedia materials into a streaming video or audio format ("streaming media"), the hosting of Customer's streaming media and related components on VIDEOKAST's servers (that portion of the server allocate for Customer's use is hereafter referred to as "Customer's Allotted Space") and the granting of permission to link Customer's web site to Customer's Allotted Space. VIDEOKAST may provide any other services, as necessary, for the operation of its business.

Section 1.3. VIDEOKAST Written Agreement. For special services, or customized solutions, a VIDEOKAST Written Agreement may accompany these Terms and Conditions. If such document accompanies these Terms and Conditions, the terms of the written VIDEOKAST Written Agreement shall override any inconsistencies or contradictory Terms and Conditions that may arise between the two agreements.

Section 1.4. Streaming - Space Support and Maintenance. VIDEOKAST agrees, subject to the terms of this Agreement, to allow Customer to use and occupy Customer's Allotted Space on VIDEOKAST's servers. Subject to the terms of this Agreement, VIDEOKAST agrees to provide Customer with those support services necessary to allow third persons to access and view Customer's media on Customer's Allotted Space as per the terms of this Agreement.

Section 1.5. Linking Services. VIDEOKAST shall provide Customer with all necessary information to construct, and maintain, a hyperlink from Customer's web site to Customer's Allotted Space on VIDEOKAST's server. VIDEOKAST shall use all reasonable commercial efforts to make Customer's Allotted Space available for viewing by third parties 24 hours each day, seven days per week. Customer shall have the responsibility to notify VIDEOKAST if Customer's hyperlink to VIDEOKAST's service is inoperable.

Section 1.6a Encoding - Conversion of Customer's Media. VIDEOKAST, upon Customer's request and subject to all payment requirements and any other conditions described herein, shall convert, through its own efforts and those of its sub-contractors, Customer's multimedia materials into a streaming video and/or audio format. Customer shall provide VIDEOKAST with a copy of the materials to be converted in the format as specified on the Customer's quote submitted to VIDEOKAST. Customer should not provide VIDEOKAST with the original of the materials to be converted and, in no instance, shall VIDEOKAST be liable to Customer for direct damages for loss of, or other damage to, Customer's materials greater than the cost of the medium on which the materials were transmitted to VIDEOKAST. Customers wishing this service must complete the Quote Request form as provided by VIDEOKAST. Customer will then receive the Quote for the costs of conversion which must be signed and returned to VIDEOKAST prior to commencement of service. Customers utilizing this service shall be bound by the terms and conditions of this Agreement. Customer shall retain all rights, including all trademark, licensing and copyright rights, in both the original multimedia materials as well as the streaming media materials.

Customer represents and warrants that materials Customer provides for encoding by VIDEOKAST, and VIDEOKAST's encoding of those materials as Customer requests, will not infringe upon, violate or misappropriate any patent, copyright, trade secret, trademark, contract, or any other publicity right, privacy right, or proprietary right of any third party. VIDEOKAST shall not be liable for any such infringement, violation, or misappropriation, and Customer shall indemnify VIDEOKAST against all losses and expenses, including for all attorneys' fees and other costs, relating to Customer's breach of that representation and warranty.

Section 1.6b Encoding - Rush Fees. VIDEOKAST's standard turn-around time for encoding orders is five business days from receipt of materials. For orders requiring shorter turn-around time, a Rush Fee charge may be assessed.

Section 1.7. Privacy Policy. Customer agrees the use of the Service is subject to VIDEOKAST's " Privacy Policy ".

Section 1.8 Security of Integrity Customer's Media. VIDEOKAST provides best efforts to insure integrity and security of Customer's Media, including the use of automated tape-back up systems, secure servers, and restricted access to back office systems. However, such procedures cannot guarantee complete security and integrity of media. Therefore, VIDEOKAST makes no guarantee and assumes no liability for the security of any media on any server including "secure servers." Customer agrees to maintain separate backups of any media other than the backup systems that VIDEOKAST has in place and VIDEOKAST shall not be liable for the loss, or modification, of any Customer materials due to any breach of security. VIDEOKAST's backup systems are reserved for VIDEOKAST's use and are not available to Customer for the purposes of requesting media whereby such missing or defective media is a result of circumstances not related to VIDEOKAST's system failures or breach of security.

Section 1.9. Disclaimer of Warranty. VIDEOKAST WARRANTS THAT THE SERVICE WILL OPERATE SUBSTANTIALLY IN CONFORMANCE WITH THE SPECIFICATIONS DEPICTED IN THEIR PACKAGE. TO THE EXTENT PERMITTED BY LAW, VIDEOKAST DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. THE DURATION OF ANY STATUTORILY REQUIRED WARRANTY PERIOD SHALL BE LIMITED TO THE TERM OF THE LIMITED WARRANTY.

Section 1.10. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL VIDEOKAST BE LIABLE TO CUSTOMER FOR DIRECT DAMAGES GREATER THAN THE SUM TOTAL OF PAYMENTS MADE BY CUSTOMER FOR THE USE AND OCCUPANCY OF CUSTOMER'S SPACE OR IN THE CASE OF SPECIAL SERVICES, INCLUDING ENCODING SERVICES, THE SUM TOTAL OF PAYMENTS MADE BY CUSTOMER TO VIDEOKAST FOR THE SERVICE FOR WHICH DAMAGES ARE CLAIMED. IN NO EVENT SHALL VIDEOKAST BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF AND IN RELATION TO THIS AGREEMENT EVEN IF ADVISED BEFORE HAND OF THE POSSIBILITY OF SUCH LIABILITY. UNDER NO CIRCUMSTANCES WILL VIDEOKAST BE LIABLE TO CUSTOMER FOR ANY MARKETING, ADVERTISING, PROMOTIONAL EXPENSES OR ANY EXPENSES RELATED TO THE CUSTOMER'S USE OF VIDEOKAST'S SERVICE, REGARDLESS OF ANY EVENT, INCLUDING INTERRUPTION OF VIDEOKAST'S SERVICE, OR VIDEOKAST'S REMOVAL OF CUSTOMER'S MATERIAL.

Section 1.11. Taxes. In the event that they are applicable, Customer shall be solely responsible for the payment of all sales, use and similar taxes relating to their use of VIDEOKAST's services.

Section 1.12. Governing Law. The laws of the Commonwealth of Virginia shall govern the validity, construction and performance of this Agreement.

Section 1.13. Arbitration. The parties agree to submit any dispute arising out of or in connection with this Agreement to binding arbitration in Virginia before an arbitrator agreed to by both parties and subject to the rules of the American Arbitration Association. The parties agree that such arbitration will be in lieu of either party's rights to assert any claim, demand or suit in any court action, (provided that either party may elect either binding arbitration or a court action with respect to obtaining injunctive relief to terminate the violation by the other party of such party's proprietary rights, including, without limitation any trade secrets, copyrights or trademarks). Any arbitration shall be final and binding and the parties agree not to contest the enforceability of the arbitrator's order.

Section 1.14. Assignment and Account Ownership. Customer may not assign its rights or obligations arising under this Agreement without submitting a request to do so in writing, complete with original signatures, and without VIDEOKAST's prior written consent. Should ownership of a VIDEOKAST Account be disputed between two or more parties, priority shall first be given to the original name on the account for which invoices are submitted, supported by the billing address. If ownership of an Account remains in dispute, VIDEOKAST reserves the right to interplead the dispute to binding arbitration as depicted in this General Terms and Conditions in the Commonwealth of Virginia , and suspend service and withhold Customer's content until court action determines otherwise. VIDEOKAST may assign its rights and obligations under this Agreement, but must provide written notice to Customer within 30 days of doing so.

Section 1.15. General Provisions. BOTH PARTIES REPRESENT AND WARRANT THAT THEY HAVE FULL POWER (INCLUDING CORPORATE POWER) AND AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT AND TO PERFORM THEIR OBLIGATIONS HEREUNDER, AND THAT THE PERSON (AND COMPANY, IF APPLICABLE) WHO ACCEPTS THIS AGREEMENT BY CLICKING THE "I ACCEPT THESE TERMS AND CONDITIONS" BOX IS DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE PARTY.

Section 1.16. Amendment of Agreement. Unless a VIDEOKAST Written Agreement specifies otherwise, VIDEOKAST may amend this Agreement from time to time on an as-needed basis by placing an update of this Agreement on-line at VIDEOKAST's web site at this location or at any other location designated at said site. Any changes to this Agreement take effect upon the renewal date of the Agreement. Therefore, it is Customer's responsibility to monitor this Agreement on-line. If Customer does not agree with the terms and conditions of VIDEOKAST, Customer must immediately cease the use of VIDEOKAST's service. VIDEOKAST agrees to give written notice, via email to the primary email address on record, of any material changes that affect the length, pricing, privacy, or cancellation of this Agreement.

Section 1.17. Notices: VIDEOKAST reserves the right to contact our users regarding important product or policy announcements and to satisfy legal requirements. All legal notices to VIDEOKAST should be submitted to:

VIDEOKAST
Attn: Legal Affairs
38782 Mt. Gilead Road Leesburg, VA 20175
Tel: 703-777-6840 Fax: 703-777-2544
Email: legal (at) videokast.com

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