Digital Millennium Copyright Act Services Ltd. Terms and Conditions

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Digital Millennium Copyright Act Services Ltd. Terms and Conditions

DEFINITIONS
1. Digital Millennium Copyright Act Services Ltd. (DMCA Services) provides copyright and content protection and enforcement services that may or may not include the US Copyright Act. DMCA Service’s services 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 subscription website content protection service which provides a variety of services related to website content protection and enforcement; manual personalized copyright and content takedown services. DMCA Services may provide any other services, as necessary, for the operation of its 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.
Representations and Warranties
1. Representations and Warranties of Both Parties.
2. Representations and Warranties of DMCA Services
3. Representations and Warranties of Customer
4. 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:
  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. DMCA.com Protection Badge usage indemnity
  8. Included with the DMCA.com Protection Service badge is the Website Certificate and Status page.
  9. 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.
  10. 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.
  11. 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.
  12. 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.
5. 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.
6. 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.
  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.
  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
7. Affiliate Program
8. 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:
  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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.