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Digital Millennium Copyright Act Services Ltd. Terms and Conditions

 

 

Digital Millennium Copyright Act Services Ltd. (DMCA Services) Terms and Conditions


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.


WHEREAS:



  1. DMCA Services copyright and / or content protection and enforcement services; and

  2. Customer wishes to procure copyright and / or content protection and enforcement services from DMCA Services in accordance with the terms of this Agreement.


NOW THEREFORE, in consideration of the mutual premises and agreements hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto covenant and agree as follows:




  1. DEFINITIONS


    1. DMCA Services provides copyright and / or content protection and enforcement services that may or may not include the US Copyright Act. DMCA Service’s services are outlined below in Section 3 of this agreement. They include, but are not limited to: providing a free to use HTML Badge or Logo which allow users access to "free to use" services with a password protected login; a website content protection subscription service which provides a variety of services related to website content protection and enforcement; manual, personalized, for fee copyright and content takedown services. DMCA Services may provide any other services note detailed here, as necessary, for the operation of it's business.

    2. By receiving and reviewing DMCA Services’ Terms & Conditions, you acknowledge that this is a binding legal agreement between DMCA Services and you as a Customer of DMCA Service. Having read and understood these Terms & Conditions, you acknowledge their priority to any purchase order, negotiation, or advertisement, and agree to the terms herein. No terms, conditions or reservations stipulated by the Customer and no verbal negotiations shall annul, vary or add to any of these Terms& Conditions, except in so far as expressly consented to and agreed to in writing by DMCA Services.

    3. For special services, or customized solutions, a written DMCA Services Service (Level) Agreement may accompany these Terms & Conditions. If such document accompanies these Terms & Conditions, the terms of the written Service Level Agreement shall override any inconsistencies or contradictory Terms & Conditions that may arise between the two documents.

  2. Representations and Warranties


    1. Representations and Warranties of Both Parties.

      1. Each party hereto represents and warrants to the other party that as of the commencement of the agreement for the provision of Services that:

      2. such party is legally authorized to bind the relevant entity, which is validly existing and in good standing under the laws of the jurisdiction in which it is organized, with full legal power and authority to carry on its business as it is now being conducted;

      3. the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by such party. No other corporate or shareholder action or other proceeding on the part of such party or its shareholders is necessary to authorize this Agreement and the consummation of the transactions contemplated hereby;

      4. this Agreement constitutes a valid and binding obligation of each party, enforceable against such party in accordance with its terms, except that such enforcement may be subject to receivership, bankruptcy, insolvency, reorganization, or similar laws now or hereafter in effect relating to creditors' rights; neither the execution, delivery nor performance of this Agreement nor the consummation of the transactions contemplated hereby will violate any provision of the charter or organizational documents of such party;

      5. there is no action, suit, claim, proceeding or investigation pending or, to the best of such party's knowledge threatened against or affecting such party, at law or in equity, before any foreign or domestic federal, state, provincial, municipal or other governmental department, commission, board, bureau, agency or instrumentality, or arbitration proceeding which would materially affect such party's abilities to enter into this Agreement or to perform its obligations hereunder;

      6. the representations and warranties of each party contained herein are true, complete and correct; and the execution and delivery of this Agreement and the performance of each party's obligations hereunder will not violate any provision of any agreement or other instrument to which such party is a party or is otherwise bound.

    2. Representations and Warranties of DMCA Services

      1. DMCA Services represents and warrants to the Customer that to DMCA Services’ knowledge, DMCA Services owns or has all rights, permission and interests necessary to perform the Services, including, without limitation, the right to use and utilize the technology and intellectual property necessary to provide the Services; to DMCA Services’ knowledge, the performance of the Services by DMCA Services in accordance with this Agreement shall not infringe upon or otherwise violate any third party's valid patent, copyright or other intellectual property right; during the term of an agreement, the Services provided by DMCA Services shall be provided in accordance with applicable Canadian federal and provincial law; and by qualified personnel.

    3. Representations and Warranties of Customer

      1. Customer represents and warrants to DMCA Services that, as of the commencement of the delivery of Services, the Customer is in relation to the Content the author and copyright owner and/or proper licensee and/or has all rights necessary to enter into this Agreement, including, without limitation, all applicable copyright licenses or rights in the Content and all rights of publicity with respect to any authors, artists, artwork, text material, images, sound or video associated with the Content provided by the Customer to DMCA Services. The Customer further represents and warrants that the Content is not defamatory, obscene, or otherwise unlawful in any jurisdiction or country in which it is intended to be uploaded, broadcast or distributed, and does not infringe or interfere with any intellectual property, contract, right of publicity, or any other proprietary right of any individual or entity wheresoever situate.

      2. By using DMCA Services’, the Customer further represents that no Content violates the trademark or rights of any third party. Customer warrants that the Content Customer provides for protection and takedown by DMCA Services, and DMCA Services' protection and takedown 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. DMCA Services shall not be liable for any such infringement, violation, or misappropriation and Customer shall indemnify DMCA Services against any and all losses and expenses, including for all attorneys' fees and other costs, relating to Customer's breach of this representation and warranty.

      3. DMCA Services shall not be held liable by the Customer for any unauthorized access, replication or redistribution of their content.


  3. Services Subject to these terms, DMCA.com agrees to provide the services described in the attached Order or Invoice, as as described in Schedule A (“Services”) or as defined in the Services description. Customer agrees to provide all such assistance, DMCA.com may reasonably request in connection with the performance of the Services.

    1. DMCA.com Protection Badge


      1. DMCA Services provides "DMCA.com Protected" badges or logos for internet users to place upon websites.

      2. DMCA Services provides "DMCA.com Protected" badges or logos for internet users as a free service. DMCA Services provides the HTML code for any internet users to add a DMCA.com Protection Badge to their website at no charge.

      3. DMCA Services does not monitor the usage of the DMCA.com Protection Badge.

      4. Specific services and features are provided to the website owner that registers with DMCA Services following website instructions. These specific features are listed on the website. From time to time the services and features provided to the registered user are changed without notification to the registrant.

      5. DMCA.com Protection Badge Acceptable Use policy statements:

        1. the DMCA.com Protection Badge shall be used and displayed on a website to promote the DMCA Services protection service for the DMCA.com Protection Badge registrant

        2. the DMCA.com Protection Badge shall not be used and displayed on a website to promote hatred or harm towards anyone or any party, group or organization.

        3. the DMCA.com Protection Badge shall not be used and displayed on a website to promote the protection of content which has been obtained illegally or without permission.

        4. the DMCA.com Protection Badge shall not be used and displayed on a website to promote the protection of content which is prohibited by the laws of the Canada or country where the website host is physically located or incorporated.


      6. Should any of the terms of the DMCA.com Protection Badge Acceptable Use Policy listed above not be met, DMCA Services reserves the right to stop delivery of the badge and where required report any illegal activity to the relevant authorities having jurisdiction.

      7. "Protection" in terms of the service paid for when used in conjunction with the DMCA.com "Protection Badge(s)" is applied through services supplied through the ProtectionPro Service suite and limited professional takedown services as defined by the ProtectionPro Service paid for in the month of the last payment reoccurring made. No additional website or website content protection is implied or stated here or anywhere within the DMCA.com website.

        1. no guarantee of the security of the contents of the website or webpages located within the website is implied or stated.

        2. no guarantee on the success of the removal of infringing content is implied or offered in anyway with regards to the DMCA.com Protection Badge program should any stolen content not be taken down off an infringing site with the ProtetionPro or Protection Badge program.

        3. no monetary dispensation is implied or offered in anyway with regards to the DMCA.com Protection Badge program should any stolen content not be taken down off an infringing site with the ProtetionPro or Protection Badge program.

      8. DMCA.com Protection Badge usage indemnity

        1. DMCA Service, it employees, agents, contractors or management shall not be held responsible, liable or included in any legal action taken against a website owner as a result of the installation of the badge or content on the website.

        2. DMCA Service makes no statement of claim regarding the performance, function, coding etc of a website once the badge HTML code has been installed on the website. DMCA Service, it employees, agents, contractors or management shall not be held responsible or liable for any issues which may result when a DMCA.com Protection Badge is installed on a website.


      9. Included with the DMCA.com Protection Service badge is the Website Certificate and Status page.

        1. the DMCA.com Protection certificate or status page is intended to state to the reader that all content contained on the website, upon which the Protection Badge and subsequent certificate is located, is the website owners. Or the content contained on the website and webpage is being published with permission.

        2. the DMCA.com Protection certificate and status page is not intended, designed or promoted as a legal contract or legal document of any kind.

        3. the DMCA.com Protection certificate and status page shall not be used and displayed on a website to promote hatred or harm towards anyone or any party, group or organization.

        4. the DMCA.com Protection certificate and status page shall not be used and displayed on a website to promote the protection of content which has been obtained illegally or without permission.

        5. the DMCA.com Protection certificate and status page shall not be used and displayed on a website to promote the protection of content which is prohibited by the laws of the Canada or country where the website host is physically located or incorporated.

        6. the DMCA.com Protection certificate and status page does not represent ANY obligation, legal or otherwise, on behalf of DMCA Services, it's management, staff or authorized agents toward the website owner or host.

        7. DMCA Services makes no statement of claim with regards as the legal specifics of the language contained within the Website Certificate. Quotes and reference to the United States Copyright Act , DMCA Policy is strictly provided as reference for the reader.

        8. From time to time language contained within DMCA .com Website Certificate and Status page me change to meet specific guidelines is laid out by the website owner. Quotes and references to any law are specific to the website owner or country of origin and are the responsibility of the website owner. DMCA.com its management, staff were authorized agents are not responsible for the accuracy of the legal language contained within any customized Website Certificate and Status page.

        9. A verified status of the Website Certificate and Status page occurs when the website owner is a paid subscription client of DMCA.com. This verified status of the Website Certificate and Status page does not imply any additional verification over and above the fact the website / protection badge user is a current paying client.
        10. An unverified status of the Website Certificate and Status page occurs when the website owner is not a client and is a free user of the DMCA Services Protection Badge.
        11. should the DMCA.com Protection Website Certificate and Status page be linked to a website or webpage which is in contraventions of the DMCA.com Protection Badge Acceptable Use Policy (see article 4.C.) DMCA Services reserves the right to stop delivery of the Website Certificate and Status page and where required report any illegal activity to the relevant authorities having jurisdiction.


      10. DMCA Services reserves the right to monitor or view Content on websites which have the DMCA Protection Badge or logo placed upon it at any time for the purpose of ensuring compliance with this Agreement. DMCA Services reserves the right stop delivering the DMCA Protection Badge, without first notifying the client, if content on a domain or website page upon which a DMCA Protection Badge is being delivered is, in DMCA Services’ sole discretion, potentially illegal, a violation of trademark rights and/or copyright, or which may subject DMCA Services to liability, or violate the acceptable use policy stated below in these Terms & Conditions. DMCA Services may notify Customer of the reason for removal. In no instance shall DMCA Services be liable for the removal of the DMCA Protection Badge or the illegal and or unauthorized access, replication or redistribution of their content.

      11. DMCA Services shall not be liable for any such infringement, violation, or misappropriation and Customer shall indemnify DMCA Services against any and all losses and expenses, including for all attorneys' fees and other costs, relating to Customer's breach of this representation and warranty.

      12. DMCA Services shall not be held liable by the Customer for any unauthorized access, replication or redistribution, infringement upon, violation or misappropriation of any patent, copyright, trade secret, trademark, contract, or any other publicity right, privacy right, or proprietary right of any third party held by the customer, of their content while the customer uses any protection product from DMCA Services. The Customer shall indemnify DMCA Services against any and all losses and expenses, including for all attorneys' fees and other costs, relating to Customer's breach of this representation and warranty as a result of any action against DMCA Services as a result of the customer using any DMCA Services’ product or services.

      13. The DMCA Protection Badge service includes with a website certificate or status page this feature is included within the articles above listed 4.A., 4.B.,4.C.

    2. Protection Pro Subscription Service


      1. Specific services and features are provided to the website owner that registers with DMCA Services following website instructions. These specific features are listed on the website. From time to time these services and features are changed without notification to the registrant.

      2. Toolkit and Do It Yourself Takedown service - DMCA.com provides a Do It Yourself takedown service whereby users pay a monthly subscription service to create and download a completed DMCA.com Takedown form. This form can then be sent by the Client as an attachment.

      3. Toolkit and Do It Yourself Takedown service Acceptable Use policy statements:

        1. The sender of the Do It Yourself takedown form, the Client, must own the content contained within their claim of ownership to the content claimed in the takedown. Should this be proven false the client's access to Protection Pro will be revoked.


    3. Manual Takedown Services


      1. DMCA Services’ includes a for fee manual takedown service where customers pay a fee for an authorized representative or employee of DMCA Services to process DMCA Takedown(s) or cease and desist Notice(s) to website owners or hosts, where possible and required, as prescribed in the DMCA section of the US Copyright Act.

      2. In order to conduct this work on the a customer’s behalf the client must first select the required to sign, digitally or by hand, a sworn statement confirming the authenticity of the customer’s claim to content ownership and use authorization.

        1. The statement reads: I swear under penalty of perjury that I have reasonable good faith belief that use of the material in the manner specified above is not authorized by me, the company I represent, its agents, or the law. The information provided herein is accurate to the best of my knowledge. I hereby authorize DMCA.com to act as my/our non-exclusive agent for this copyright infringement notification process.

        2. This sworn statement provides DMCA Services and its employees and representatives’ the authority to process action on their behalf.

        3. Services may be withdrawn at any time without notice if the conditions of this statement are found to be false or if the customer does not have the authority to swear a statement in regards to the content involved in the submitted action.

        4. All customers are required to sign the sworn statement.

        5. For multiple actions signing the sworn statement for the first one will act as permission for all subsequent actions. Payment of actions will confirm sworn statement.

      3. Guarantee of success and conditions of that guarantee are as stated on the website, www.dmca.com, and are a part of the paid service.

        1. No guarantee shall include coverage from damages incurred from legal action of any parties involved in the cases processed by DMCA.com, its employees, agents, management, directors.

      4. In no instance shall DMCA Services be liable for and legal action by, from or on the customer as a course of processing the takedown or cease and desist notice. DMCA Services is acting on behalf of or as an agent of the customer and any subsequent legal action shall DMCA Services shall not be liable for any such infringement, violation, or misappropriation and the Customer shall indemnify DMCA Services against any and all losses and expenses, including for all attorneys' fees and other costs, relating to acting on behalf of the Customer or if the customer is in breach of the sworn statement, representation and warranty, as a result of DMCA Services acting on behalf of the customer

    4. DIY Takedown Services


      1. As part of the Protection Pro Subscription Service, DMCA.com provides a service whereby paid users may create and file DMCA Takedown Notices on their own.

      2. DMCA.com provides no guarantee as to the effectiveness of takedown notices generated by the user through this service.

      3. DMCA.com does not track the takedown notices or their content as generated by users through this program.

      4. DMCA.com will respond to all abuse claims regarding users of the Do It Yourself takedown program. If any abuse of the Do It Yourself services are found, DMCA.com will cancel the service.

      5. DMCA.com reserves the right to cancel the Do It Yourself service for any paid subscriber at any time.

      6. The DMCA.com Do It Yourself takedown program is not to be used at any time for the creation and sending of frivolous or competitive based takedown notices. If the claim created within the Do It Yourself notice is without merit the service will be cancelled.

    5. Affiliate Program


      1. DMCA.com employs an affiliate program to resell DMCA.com paid services.

      2. DMCA.com uses several methods to compensate affiliates. Specifics change from time to time or according to an agreed upon program.

      3. DMCA.com compensates affiliates according to specifics sales programs.

      4. DMCA.com reserves the right to cancel any affiliate program at any time.

      5. DMCA.com reserves the right to cancel the membership and program access of any affiliate at any time.



  4. Acceptable Use Policy


    1. These Terms & Conditions are designed to help protect DMCA Services’ customers and the Internet community from irresponsible or illegal activities. In the event that Customer violates this Agreement through improper use of the Services, DMCA Services reserves the right to terminate the Services without notice. However, DMCA Services shall make reasonable efforts to advise Customer of the inappropriate behaviour and offer suggestions for corrective action. DMCA Services reserves the right to immediately terminate its service to Customer for any flagrant or repeat violations of this Agreement.

    2. Customer hereby agrees to not use any DMCA Services’ Service to protect, promote or publish any Content that:

      1. is offensive by community standards, such as Content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;

      2. harasses or advocates harassment of another person;

      3. involves the transmission of "junk mail", "chain letters", or unsolicited mass mailing or "spamming";

      4. promotes information that is false, misleading, illegal or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;

      5. infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party or violates any export control laws including, without limitation, promoting an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;

      6. provides material that exploits people under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under the age of 18;

      7. provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;

      8. solicits passwords or personal identifying information for commercial or unlawful purposes from other users;

      9. you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information);

      10. engages in commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, and pyramid schemes, without our prior written consent; and

      11. contains or will contain any disabling mechanism or feature, including any clock, timer, counter, computer virus, cancelbot, worm, software lock, drop dead device, Trojan horse routine, trap door, time bomb or any other codes, designs, routines or instructions that may be used to access, modify, replicate, distort, delete, damage, disrupt or disable the Content, any other Customer’s Content, the Services or any DMCA Services operating system software or hardware.

    3. Customer acknowledges that this list is not exhaustive. DMCA Services will cooperate with any and all appropriate legal authorities in investigating claims of illegal activity, including, but not limited to illegal transfer or use of copyrighted material. Customer acknowledges and agrees that DMCA Services may preserve Content and may also disclose Content as well as information contained in Customer's profiles, folders, transmissions, communications, passwords, or any other information DMCA Services considers applicable if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to comply with legal process; to enforce these Terms & Conditions; to respond to claims that any Content violates the rights of third-parties; or to protect the rights, property, or personal safety of DMCA Services, its users and/or the public.

    4. Cancellation of Service by DMCA.com. DMCA.com reserves the right to cancel the Customer's account should the Customer fail to adhere to the terms of this Agreement. Should cancellation of the account occur, DMCA.com will reimburse client any unused fees (prorated daily), after DMCA.com has determined, in its own discretion, that all charges associated with the account have been satisfactorily paid. Upon request of Customer, DMCA.com shall return all Customer materials. DMCA.com reserves the right to withhold fees, up to the total of any charges associated with the account that have not been satisfactorily paid, if legal action is pending against DMCA.com for the misuse of the account or if DMCA.com reasonably believes legal action may be brought against DMCA.com. Under such conditions, DMCA.com may withhold such fees until it has been determined that any legal action brought against DMCA.com has been satisfactorily resolved and all charges have been satisfactorily paid.
    5. Cancellation of Service by Customer. Customer shall have the right to terminate this Agreement upon thirty (30) days written notice to DMCA.com. DMCA.com shall reimburse client any unused fees (prorated daily), after DMCA.com has determined, in its own discretion, that all charges associated with the account have been satisfactorily paid. Customers who have subscribed to an Annual or Semi-Annual Subscription Package, and who seek to cancel their subscription prior to the expiration of their term, shall have their account recalculated based upon the month-to-month rate and any remaining unused fees will be reimbursed to Customer. Prior to cancellation of service, Customer is responsible for removing their materials from their allotted space on DMCA.com's servers and DMCA.com will not be responsible for storage and preservation of Customer's materials upon receipt of request for cancellation. DMCA.comreserves the right to withhold fees, up to the total of any charges associated with the account that have not been satisfactorily paid, if legal action is pending against DMCA.com for the misuse of the account or if DMCA.com reasonably believes legal action may be brought against DMCA.com. Under such conditions, DMCA.com may withhold such fees until it has been determined that any legal action brought against DMCA.com has been satisfactorily resolved and all charges have been satisfactorily paid.

  5. PAYMENT. Fees are payable in advance, and are due upon receipt of invoice. Billing will occur annually on the anniversary of the Service Commencement Date. Payment options are credit card (Visa, MC, and Amex), PayPal, or wire transfer. Bank charges for wire transfers will be at the expense of the Customer. Except to the extent required by law, all amounts payable to DMCA.com hereunder shall be paid in full without any deduction or withholding. If at any time the financial condition of the Customer so warrants, or if Customer fails to make any payment(s) when due, or if Customer defaults on any obligation to DMCA.com, DMCA.com may at its discretion and without liability alter the terms of payment, delay or suspend delivery of any Service pending receipt of payment in full, and/or pursue any other remedies available under this Agreement, at law or in equity. If DMCA.com suspends the delivery of the Service, a re-connection fee may apply.

    1. Price and Payment. Customer shall pay DMCA.com recurring reoccurring product or service fees or one time product or service fees as indicated at www.DMCA.com website or with an agreement, order or invoice. Setup fee, if applicable, plus first month monthly charges are due before service begins for Customers who elect to pay for their accounts on a monthly basis. Customers electing to pay semi-annual or annually must submit payment before service begins. Amounts past due by 45 days are subject to DMCA.com's standard late payment fee of 5% of the standard monthly rate for that package. Amounts past due by 90 days are subject to immediate closure. DMCA.com reserves the right to increase prices upon the expiration of the Customer's contracted term. Price increases shall be posted on DMCA.com's web site 30 days prior to taking effect. This Agreement will automatically renew on a month-to-month basis at the month-to-month rate in effect at the time of the renewal unless canceled in writing or modified in writing by the Customer prior to the renewal date. Customer will receive an invoice for charges and payment is due upon receipt of invoice.
    2. 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 DMCA.com's services.

  6. REFUNDall refunds shall be processed in the same method of payment.

    1. Protection Pro

      1. only yearly Protection Pro shall be issued a refund and only if the client issues refund request within 10 days of receipt of payment
      2. no refunds shall be prorated
      3. refunds shall NOT include or processing fees.
      4. no refunds on payments made using coupon codes
      5. no refunds on monthly subscription payments

    2. Professional Takedown ServicesDMCA.com offers a money back guarantee should the the Professionally managed service not be successful. Exceptions are:

      1. EXCEPTION - the client has waived this guarantee and this waiver has been made within the case comments of the Professional Takedown case related to the client's payment.
      2. EXCEPTION - the client has not responded within 24 hours of case inactivity email notification.

    3. CONTENT

      1. Warranty. Customer warrants that it is the owner and/or that it possesses all necessary rights and licenses in and to all content (“Customer Content”). Without limiting the generality of the foregoing, Customer shall be responsible for ensuring that Customer Content complies with all applicable licensing requirements, and for the payment of any applicable contractual music licensing fees, including, without limitation, all SOCAN, BMI, ASCAP, CISAC and SESAC licensing requirements and fees, as well as any requirements and fees imposed under applicable legislation.
      2. Integrity. Customer shall be solely responsible for ensuring that Customer Content complies with the terms of this Agreement including, but limited to, the restrictions set out in Section 9 (“Prohibited Users”), below. Customer acknowledges and agrees that DMCA.com has the right (but not the obligation) to monitor or view Customer Content at any time, for the purpose of ensuring compliance with this Agreement. DMCA.com reserves the right to stop providing DMCA Protection Badges and / or Protection Certificate for any Customer Content if that Customer Content is, in DMCA.com’s sole discretion, inconsistent with the terms or spirit of this Agreement. In no event will DMCA.com be liable for the removal of Customer Content.
      3. DMCA.com Not Responsible for Content. Customer expressly acknowledges and agrees that DMCA.com is not responsible, and shall have no liability under any circumstances for any content uploaded to DMCA.com’s site by any party other than DMCA.com. DMCA.com is a service provider not a distributor, and not a publisher, of Customer Content and any content supplied by any third parties, including Customer’s customers. Customer agrees that DMCA.com does not have editorial control over any such Customer Content or third party content. Advice, opinions, representations, statements, comments, ratings, criticisms, or other information or content expressed or made available by third parties are those of the respective third party author and not of DMCA.com, and DMCA.com does not endorse and expressly disclaims any liability in respect of such third party content. As between Customer and DMCA.com, Customer is solely responsible for the accuracy, completeness, legitimacy and legality of any third party content, and including the use or reliance by any party of or on such third party content.
      4. Content of Customer's Materials. DMCA.com does not actively monitor the Customer's material nor does DMCA.com exercise any editorial control over the content of any material that the Customer uploads into DMCA.com's service. However, DMCA.com reserves the right to remove any DMCA Protection Badges and / or Protection Certificate service that are, in DMCA.com's discretion, potentially illegal, a violation of Trademark and or Copyright, or may subject DMCA.com to liability, or violate the acceptable use policy stated below in this Agreement. Upon removal of the material, DMCA.com shall notify Customer of the removal of the materials, as well as the reason for removal. In no instance shall DMCA.com be liable for the removal of the materials.


    4. PROHIBITED USES

      1. Prohibited Uses. The Services may be used only for lawful purposes, and all use by Customer must comply with the terms of this Agreement. Misuse or unauthorized use of the Services, DMCA.com’s network and systems, or of any other service, information, images or other materials supplied by DMCA.com is strictly prohibited. Without limiting the generality of the foregoing, DMCA.com specifically prohibits the use of the Services, and DMCA.com’s servers, networks, websites and systems, for any of the following purposes:

        1. engaging in conduct that would constitute a criminal or quasi-criminal offence, that would give rise to civil liability, or that would otherwise violate any applicable local, provincial, state, federal or international law or accepted Internet protocol
        2. posting or uploading information that is inaccurate, incomplete, misleading, false or libelous
        3. communicating, transmitting, uploading or posting material that is protected by copyright, trade mark or trade secret, or which infringes upon the intellectual property rights of any other party, unless permission to use the material has first been obtained
        4. communicating, transmitting, uploading or posting material that infringes the privacy rights of any other party, unless permission to so use the material has first been obtained
        5. communicating, transmitting, uploading or posting material that it obscene, vulgar, abusive, defamatory, threatening, racist, sexist or otherwise objectionable
        6. attempting to interfere with DMCA.com’s data, servers, network or network security
        7. advertising, soliciting or otherwise promoting the sale or other distribution of products or services, including contests, sweepstakes, barter, advertising, and pyramid schemes
        8. filing, undertaking or pursuing any claims, proceedings, suits or actions against DMCA.com, its officers, directors, employees or representatives
        9. using or attempting to use the Services or DMCA.com’s network to gain unauthorized access to any other party’s data or network
        10. or otherwise using the Services or DMCA.com’s network in a manner that could, in DMCA.com’s opinion, adversely affect the ability of other users to use DMCA.com’s services or the Internet, including the posting or transmitting of information or data containing (or that will contain) any disabling mechanism, including clocks, timers, counters, worms, viruses, Trojan horses, software locks, drop dead devices, time bombs or other disruptive components, codes, designs, routines or instructions.

    5. DMCA.com’s Rights. DMCA.com will cooperate with any and all legal authorities in investigating claims of illegal activity, including, but not limited to the illegal transfer or use of copyrighted material. Customer acknowledges and agrees that DMCA.com may preserve Customer Content and may also disclose Customer Content as well as information contained in Customer's profiles, folders, transmissions, communications, passwords, or any other information DMCA.com considers applicable if requested to do so by law enforcement authorities, if required to do so by law, or in the good faith belief that such preservation or disclosure is reasonably necessary to comply with legal process; to enforce this Agreement; to respond to claims that any Customer Content violates the rights of third-parties; or to protect the rights, property, or security of DMCA.com, its users and/or the public.

    6. CUSTOMER WARRANTIES. Customer represents and warrants to DMCA.com as follows:

      1. If a corporation, it is a legal entity in good standing, and that it is duly authorized to carry on business, and to enter into and perform the obligations set forth in this Agreement;
      2. If an individual, he/she is 19 years of age or older;
      3. It and its affiliates are not under any obligation or restriction, nor is it involved in any legal action, which would in any way interfere or be inconsistent with the performance of its obligations under this Agreement;
      4. No additional licenses, permits, permissions or other authorizations are required for its performance, or for the exercise by DMCA.com of any rights or licenses granted to it by Customer;
      5. It maintains, and will continue to maintain throughout the term of this Agreement, a high degree of financial integrity, service excellence and ethical conduct in its business operations;
      6. All product, service, business and financial information submitted by Customer to DMCA.com prior to and during the Term is complete and accurate, and Customer shall ensure the continued accuracy of the information;
      7. Customer’s business, and Customer’s sale of any products or services through the DMCA.com site, shall be in compliance with all applicable laws, rules and regulations;
      8. Neither the products and services offered by Customer, nor the Customer Content will contain any material that is libelous, obscene, objectionable, discriminatory, illegal, infringing in any jurisdiction in which it is intended to be uploaded, broadcast or distributed, nor will they violate any party’s privacy rights; and
      9. It is the owner and/or that it possesses all necessary rights and licenses in and to the Customer Content for the grant of the rights granted to DMCA.com in this Agreement, including the right to process, encode, stream, transmit and store the Customer Content.

    7. CUSTOMER INDEMNITIES. Customer shall defend, indemnify and hold DMCA.com, its officers, directors, employees, agents, successors, assigns, licensors and third party service providers harmless from and against all losses, costs, damages, claims and other liabilities of any kind arising directly or indirectly from or in connection with:

      1. Customer's breach of any of its obligations, representations or warranties under this Agreement;
      2. the infringement by any Customer Content of DMCA.com’s or any third party’s intellectual property rights;
      3. the use of the Services other than as authorized under this Agreement;
      4. DMCA.com’s storage, streaming, encoding, processing or other use of the Customer Content in accordance with the terms of this Agreement; or
      5. any combination of DMCA.com and its licensors’ technology with any data, product, technology or service of Customer or of any third party where a claim would have been avoided in the absence of such combination.

    8. DMCA.com INTELLECTUAL PROPERTY

      1. Intellectual Property. Customer acknowledges that DMCA.com has developed and uses valuable technical and non-technical information, designs, patents, trade secrets, know-how and the like in development and delivery of the Services, and all systems, websites, documentation and other associated materials in any form. Customer acknowledges and agrees that, except for the limited rights to use granted to Customer under this Agreement, all rights, title and interest in and to any new or pre-existing DMCA.com systems, websites, materials, designs, models, methodology, information, documentation, technology, know-how, patents, copyrights, trade secrets and other intellectual and industrial property, including any modifications or derivative works thereof, shall be and remain vested in DMCA.com and its third party suppliers, as appropriate. Customer warrants that it shall not, and shall prevent others from copying,translating, modifying, creating derivative works, reverse engineering, decompiling, encumbering or otherwise using any DMCA.com intellectual property except as specifically anticipated by this Agreement.
      2. Trade-marks. Customer recognizes and acknowledges the great value of the goodwill associated with DMCA.com’s name and trademarks, and the identification of DMCA.com’s products and services therewith. Customer agrees that it obtains no rights, title or interest in or to any of the trademarks, trade names, logos, service marks or other markings belonging to DMCA.com or its suppliers. Customer will not obscure, effect or permit the removal or alteration of any patent numbers, trade names or marks, copyright or other proprietary rights markings, warning labels, serial numbers, or the like affixed to or included in or on any websites or materials supplied by DMCA.com.
      3. Liability for Infringement. If any claim, suit or proceeding is brought or likely to be brought against Customer based upon a claim alleging infringement by the Services of any Canadian or United States patent or copyright, Customer agrees to permit DMCA.com, at its option and expense, to either:

        1. procure for Customer the right to continue using the Services;
        2. modify the Services so that they become non-infringing; or,
        3. if neither of the foregoing alternatives is reasonably available, discontinue the Services and refund to Customer a prorated portion of the annual fee prepaid by Customer to DMCA.com for the allegedly infringing Service.

        Notwithstanding the foregoing, DMCA.com shall have no liability for, and Customer will indemnify DMCA.com against, any claim based upon: (a) alteration or modification of the Services by Customer or any third party; or (b) DMCA.com’s compliance with Customer’s specifications or instructions. THE FOREGOING STATES THE ENTIRE OBLIGATION OF DMCA.com, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO THE INFRINGEMENT OF PROPRIETARY RIGHTS. THE FOREGOING IS GIVEN TO CUSTOMER SOLELY FOR ITS BENEFIT AND IN LIEU OF, AND DMCA.com DISCLAIMS, ALL WARRANTIES OF NON-INFRINGEMENT WITH RESPECT TO THE SERVICES.
      4. Intellectual Property Rights – Licensing Fees


        1. Customer shall be responsible for insuring that Customer’s content will comply with all applicable licensing requirements imposed by federal, provincial, state, or local authorities with regard to contractual music licensing fees, including, without limitation, all SOCAN, BMI, ASCAP, CISAC and SESAC licensing requirements and fees, as well as all requirements and fees of relevant legislation, including but not limited to the Canada Copyright Act and the Digital Millennium Copyright Act.

      5. LIMITED WARRANTY. DMCA.com represents and warrants to Customer that (a) the Services will be supplied in a professional manner in accordance with prevailing industry standards; and (b) DMCA.com shall comply with all applicable laws in the course of performing the Services. Customer's use of DMCA.com’s services is at Customer's sole risk. Except as expressly provided in this Section 13, to the maximum extent permitted by applicable law, DMCA.com services are provided on an "as is" basis and "as available" basis. In the event of a breach of this warranty, DMCA.com will, at DMCA.com’s option and expense either (a) use all reasonable efforts to rectify the non-conformity, or (b) refund the fees paid by Customer for that portion of the Services that fails to conform to the warranties set out above. THESE WARRANTIES ARE THE ONLY WARRANTIES PROVIDED BY DMCA.com. DMCA.com EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR REPRESENTATIONS OF NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR USE OR PURPOSE, THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR THAT THEY WILL BE UNITERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT ERRORS OR NON-CONFORMITIES WILL BE RECTIFIED, OR ANY WARRANTY OTHERWISE ARISING OUT OF ANY PROPOSAL, SPECIFICATION, OR SAMPLE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
      6. CONFIDENTIAL INFORMATION

        1. Confidential Information. Each party agrees that this Agreement, and all data, software code, inventions, algorithms, know-how, methodology and ideas, and all other business, strategic, commercial, financial, technical and employee information that it obtains from the other party, are the confidential property of the disclosing party (“Confidential Information’’). Except as permitted herein, the receiving party will hold in confidence and not use the disclosing party’s Confidential Information for any purpose other than the purposes anticipated by this Agreement. Further, a receiving party shall not disclose the disclosing party’s Confidential Information other than to those of its employees, contractors and advisors having a “need to know”, but only after they have been advised of its confidential and proprietary nature and have agreed to protect same on terms no less onerous than the terms set out in this Section
        2. Exceptions. The receiving party shall not be obligated under this Section 15 with respect to information that the receiving party can document:

          1. is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents; or
          2. is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information; or
          3. was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or
          4. was independently developed by employees, subcontractors or consultants of the receiving party who had no use of the disclosing party’s Confidential Information.

          If a receiving party is required to disclose any of the disclosing party’s Confidential Information pursuant to any applicable laws, rules or regulations, or the direction of a statutory or regulatory authority or stock exchange, or order of a relevant court of law, the receiving party shall

          1. unless prohibited by law, endeavor to provide the disclosing party with prompt written notice of such request or requirement so that the disclosing party may seek a protective order or such other appropriate remedy as the disclosing party may deem appropriate, and
          2. disclose only that portion of the Confidential Information which it is required to disclose, and then only to the extent required.

        3. Other. Except as otherwise specifically permitted by this Agreement, upon the expiration or termination of this agreement, all Confidential Information (including any copies) will, at the option of the disclosing party, be deleted, destroyed or returned to the disclosing party, and the receiving party will make no further use of such materials. The parties agree that monetary damages may not be an adequate remedy if this Section 14 is breached and, therefore, either party may, in addition to any other legal or equitable remedies, seek an injunction or other equitable relief against such breach or threatened breach without the necessity of posting any bond or surety.

      7. TERMINATION

        1. Breach. If Customer breaches a material provision of this Agreement, DMCA.com may terminate this Agreement upon thirty (30) days’ prior written notice specifying the breach, unless the breach is cured within the notice period.
        2. Bankruptcy/Insolvency. Either party shall have the right to immediately terminate this Agreement upon written notice to the other party if the other party:

          1. admits in writing its inability to pay its debts generally as they become due
          2. commits an act of bankruptcy
          3. is the subject of a petition or assignment in bankruptcy under applicable laws, that is not discharged within twenty (20) days
          4. files a notice of intention to make a proposal or otherwise seeks a reorganization under applicable bankruptcy laws or any other similar law or statute of any relevant jurisdiction
          5. makes an assignment for its creditors
          6. consents to the appointment of receiver or receiver-manager of the whole or any part of its business
          7. enters into an arrangement with or for the general benefit of its creditors.

        3. Survival. Upon the termination or expiry of this Agreement for any reason, Customer shall promptly pay DMCA.com all unpaid and undisputed amounts due for Services completed as of the effective date of termination or expiry. The provisions of Sections 6 PAYMENT, 8 CONTENT, 10 10. CUSTOMER WARRANTIES, 11 11. CUSTOMER INDEMNITIES, 12 12. DMCA.com INTELLECTUAL PROPERTY, 14 14. CONFIDENTIAL INFORMATION, 15.3 15.3 Survival., 17 17. LIMITATION OF LIABILITY and 18.1 GENERAL .1 shall survive the expiration or termination of this Agreement for any reason. Termination of this Agreement will not affect the right of either party to pursue any other remedies available at law or in equity, including injunctive relief.

      8. FORCE MAJEURE. DMCA.com will not be liable for any failure to perform its obligations to Customer due to circumstances or causes beyond DMCA.com’s reasonable control (“Force Majeure”), including, but not limited to, acts of God, war, terrorism, riot, embargoes, acts of civil or military authorities, failure or delay in delivery by DMCA.com’s suppliers, delay by Customer, fire, flood, accident, strikes, or inability to secure transportation, facilities, fuel, energy, labor, or materials. In the event of Force Majeure, where applicable DMCA.com’s time for delivery or other performance will be extended for a period equal to the duration of the delay caused thereby.


      9. Indemnity


        1. Customer agrees to indemnify and hold harmless DMCA Services, its officers, its partnered Service providers, directors, employees, agents, successors and assigns from and against any claims arising from a breach of Customer's representations, warranties or promises made in these Terms & Conditions, including, without limitation, any loss, damage, liability (including reasonable attorneys' fees and costs) resulting from the use of any DMCA Services Services in a manner not expressly authorized. Customer further agrees to indemnify and hold harmless DMCA Services, its officers, directors, employees, agents, successors and assigns from and against any claims arising from or in connection with any use of DMCA Services by the Customer or content of the Customer.

        2. Customer shall indemnify and hold DMCA Services, its designated third parties and licensors of underlying platform technology utilized by DMCA Services in performing the Services and all of their officers, directors, agents, shareholders, representatives, attorneys and employees (the "DMCA Services’ Parties") harmless from any and all Claims or portions thereof, arising out of or resulting from controversies or litigation asserted by any third party against DMCA Services arising directly or indirectly from: (i) Customer's material breach of any of its obligations, representations or warranties hereunder; (ii) any combination of DMCA Services and its licensors’ technology with any product, technology or service of Customer or of any third party where such Claim would have been avoided in the absence of such combination; and (iii) any Content distributed by Customer pursuant to these Terms & Conditions.

      10. Limitation of Liability


        1. DMCA Services provides best efforts to ensure the integrity and security of Customer's Content, including the use of automated tape-back up systems where stipulated and required in a previously signed services agreement, secure servers, and restricted access to back office systems. However, no procedure can guarantee complete and total security and integrity of Content. Therefore, DMCA Services makes no guarantee and assumes no liability for the security of any data on any server including "secure servers." Customer agrees to maintain separate backups of any data other than the backup systems that DMCA Services has in place and DMCA Services shall not be liable for the loss, or modification, of any Customer materials due to any breach of security, network or hardware failure. DMCA Services’ backup systems are reserved for DMCA Services’ 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 DMCA Services’ system failures or breach of security.

        2. UNDER NO CIRCUMSTANCES WILL DMCA SERVICES 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 DMCA SERVICES FOR THE SERVICE FOR WHICH DAMAGES ARE CLAIMED. IN NO EVENT SHALL DMCA SERVICES 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 DMCA SERVICES BE LIABLE TO CUSTOMER FOR ANY MARKETING, ADVERTISING, PROMOTIONAL EXPENSES OR ANY EXPENSES RELATED TO THE CUSTOMER'S USE OF DMCA SERVICES'S SERVICE, REGARDLESS OF ANY EVENT, INCLUDING INTERRUPTION OF DMCA SERVICES’S SERVICE OR REMOVAL OF CUSTOMER'S CONTENT. YOU EXPRESSLY ACKNOWLEDGE THAT DMCA SERVICES HAS ENTERED INTO THIS AGREEMENT, AND HAS AND WILL MAKE THE DMCA SERVICES SERVICES AVAILABLE IN RELIANCE UPON THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND THE DISCLAIMERS SET FORTH IN THESE TERMS AND CONDITIONS, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE CUSTOMER AND DMCA SERVICES. YOU EXPRESSLY AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND THE DISCLAIMERS SET FORTH IN THESE TERMS AND CONDITIONS WILL SURVIVE AND CONTINUE TO APPLY IN THE CASE OF FUNDAMENTAL BREACH OR BREACHES, THE FAILURE OF ESSENTIAL PURPOSE OF CONTRACT, THE FAILURE OF ANY EXCLUSIVE REMEDY OR TERMINATION OF THIS AGREEMENT.

        3. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

        4. Acknowledgment.Customer expressly acknowledges that DMCA.com has entered into this Agreement, and has and will make the Services available in reliance upon the limitations and exclusions of liability and the disclaimers set forth in this Agreement, and that the same form an essential basis of the bargain between the customer and DMCA.com. Customer further expressly agrees that the limitations and exclusions of liability and the disclaimers set forth in this Agreement will survive and continue to apply in the case of fundamental breach or breaches, the failure of essential purpose of contract, the failure of any exclusive remedy or termination of this Agreement.
        5. Applicability.Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you.

      11. DISCLAIMER OF WARRANTIES


        1. CUSTOMER’S USE OF DMCA SERVICES SERVICES IS AT THE CUSTOMER’S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DMCA SERVICES SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT FOR THE WARRANTIES STATED ABOVE, DMCA SERVICES EXPRESSLY DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, WHETHER OR, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.


          TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DMCA SERVICES MAKES NO WARRANTY THAT (i) ITS SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (ii) DMCA SERVICES SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE QUALITY OF SERVICES WILL MEET YOUR EXPECTATIONS, AND (iv) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.




      12. Relationship – Independent Contractor


        1. In the performance of its services, DMCA Services will at all times be an independent contractor. The Service Level Agreement and any change orders or amendments thereto and any Services carried out under the Service Level Agreement shall not constitute, nor shall they be deemed to constitute, either party as an employee, agent, partner or joint venture of the other, and neither party shall express or imply that it has the authority to create any obligation on behalf of the other party.

      13. Governing Law/Jurisdictional Issues


        1. These Terms& Conditions, and any accompanying Service Level Agreement, will be governed by and interpreted in accordance with the laws of the province of British Columbia, Canada, without regard to any of its choice of law rules that might lead to the application of the law of another jurisdiction. Subject to the Arbitration paragraph below, any litigation arising out of or related to Customer’s use of DMCA Services’ Services will be brought only in the province of British Columbia, Canada. By agreeing to these Terms & Conditions, you submit to the personal jurisdiction of the British Columbia Courts and the Federal Courts situate therein, and waive all objections to placing venue exclusively before them. In any litigation, DMCA Services will be entitled, in addition to any other relief granted to it, to recover reasonable attorney's fees, expenses and costs incurred in connection with the litigation.

        2. DMCA Services’ Services are provided, controlled, and administered by DMCA Services from its offices in British Columbia, Canada. DMCA Services makes no representation or warranty that its Services are appropriate or available for use at any locations outside Canada. If you access DMCA Services’ Services in jurisdictions outside of Canada, you are responsible for compliance with all applicable laws. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms and Conditions.

      14. Arbitration


        1. The parties agree to submit any dispute arising out of or in connection with this Agreement to binding arbitration in British Columbia before an arbitrator agreed to by both parties and subject to the rules of the Canadian arbitration process. 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.

        2. All rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. Failure by either party to enforce any term will not be deemed a waiver of future enforcement of that or any other term. The terms of this Agreement are declared to be severable and in the event any provision of this Agreement is deemed unenforceable, it shall be severed and the remainder of this Agreement shall be given the fullest effect permitted by law.
        3. Customer may not assign any rights or obligations hereunder without the prior written approval of DMCA.com, and any attempt to assign any rights, duties, or obligations hereunder without DMCA.com’s written consent will be void. DMCA.com may assign all or any part of its rights or obligations without Customer’s consent. The provisions of this Agreement will enure to the benefit of and be binding upon the parties and their respective heirs, executors, successors, permitted assigns, and personal representatives.
        4. Any consent by a party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute consent to or a waiver of any other, different or subsequent breach.
        5. The Services are provided on a non-exclusive basis, and nothing contained herein shall prevent or restrict DMCA.com from providing the same or similar services to any other party, either during the term of this Agreement or at any time thereafter.
        6. The parties are independent contractors. Neither DMCA.com’s nor Customer’s officers, employees, contractors or agents shall be deemed to be the officers, employees, contractors or agents of the other, and DMCA.com shall not be subject to the day to day supervision or control of Customer. Nothing in this Agreement shall be construed so as to create any agency, joint venture or partnership between the parties, and neither DMCA.com nor Customer shall represent that its relationship with respect to the other party is other than that of an independent contractor.
        7. Any notice, communication or statement required or permitted to be given hereunder shall be in writing and deemed to have been sufficiently given when delivered in person, or by facsimile (with confirmation of facsimile transmission), email, or by certified mail, return receipt requested and postage prepaid, to the chief executive of the other party at the address set out at the head of this Agreement, or such other persons and/or addresses as either party may advise the other from time to time in accordance with this provision.
        8. DMCA.com will cooperate with any and all appropriate legal authorities in investigating claims of illegal activity, including, but not limited to illegal transfer or use of copyrighted material or other illegal activity. DMCA.com reserves the right to monitor or view material uploaded by Customer onto DMCA.com's service at any time for the purpose of ensuring compliance with this Agreement.
        9. Amendment of Agreement. DMCA.com may amend this Agreement from time to time on an as-needed basis by placing an update of this Agreement on-line at DMCA.com'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 online. If Customer does not agree with the terms and conditions of DMCA.com, Customer must immediately cease the use of DMCA.com's service.


        10. Entire Agreement


          1. These Terms & Conditions, when read together with any Service Level Agreement (together, “this Agreement”), contain the entire understanding of the parties with respect to DMCA Services’ provision of Services and supersede all prior agreements, proposals and communications between the parties, written or oral, relating to the subject matter of this Agreement. This Agreement may only be modified in writing duly signed by authorized representatives of both parties. In no event shall preprinted terms and conditions on a Customer document (purchase order, confirmations, and acceptances) modify or add to the terms of this Agreement.

          2. DMCA Services may assign its rights under the Agreement, in whole or in part, at any time. In the event of a breach of any provision of the Agreement by the Customer, DMCA Services’ failure to insist upon or enforce strict performance of any provision of the Terms and Conditions shall not constitute a waiver of such right or provision. If any of the terms or conditions contained on this page are determined to be invalid or unenforceable by a court of competent jurisdiction, then the remaining terms and conditions will remain in full force and effect, and the invalid or unenforceable term or condition will be deemed superseded by a valid, enforceable term or condition that matches the practical effect of the original provision as closely as possible.



        If you have questions or comments, you can contact us at legal@DMCA.com or FAX (250) 477-5141. We can also be reached at: Digital Millennium Copyright Act Service Ltd., 765 Market Street Victoria, British Columbia V8T 1Z4, Canada




FAQ ID:d754afe3-957e-4f3d-b342-60553df64382