VISION MEDIA CORPORATION
TERMS OF SERVICE
1. Agreement between You and Vision Media.
1.2 In order to use the Service you must agree to these Terms. However, in addition to clicking the “I Accept” box, you may also agree to the Terms by actually using the Service. You acknowledge and agree that Vision Media will treat your use of the Service as acceptance of these Terms from the time you first use the Service.
2. Vision Media Account.
2.1 In order to use the Service, you must register with us to open a Vision Media user account (“Account”). By opening an Account, you represent and warrant that: (a) all information you submit in connection with your opening and use of your Account is true, accurate, current, and complete; (b) you will promptly notify us if your information changes so that we can update our records; (c) you are aged 13 or older; the Service is not intended for persons under 13; and (d) your use of the Service does not violate any applicable law, rule or regulation. You are responsible for maintaining this information current.
2.2 You are solely responsible for maintaining the security and confidentiality of the information you hold for your Account, including, without limitation, your username and password, and for any and all activity that occurs through your Account as a result of your failure to keep this information secure and confidential. You hereby agree to notify Vision Media immediately if you become aware of any unauthorized use of your Account, username or password, or any other breach of security in connection therewith. You may be held liable for losses incurred by Vision Media or any third party due to someone else using your Account, username or password as a result of your failing to keep your Account information secure and confidential.
You are strictly prohibited from using anyone else’s Account, username or password at any time and for any reason. Vision Media is not liable to you or any third party for your failure to comply with your obligations under this paragraph.
3. Your Privacy.
3.1 In order to use the Service you will be required to provide certain personally identifiable information to Vision Media (e.g., your first and last name, the name of the company or legal entity on whose behalf you use the Service, your telephone number, your e-mail address, and your credit card information).
4.1 The fees that you are required to pay to use the Service, and the corresponding Service
bandwidth and storage service (the “Quota”) that will be made available to you based on the amount of fees paid, are set forth in the applicable quote, or rate card, published or provided by Vision Media to you. Fees will be billed monthly in advance. The credit card you maintain on file with Vision Media in your Account will be automatically charged on the first day of each month for the following month. If you exceed the Quota applicable to the amount of fees you have paid, you will be charged any additional fees for the applicable monthly billing period that reflect your actual Service usage during such monthly billing period. Such additional fees will be charged to your credit card retroactively on the last day of the applicable monthly billing period. Fees are solely based on Vision Media’s measurements of your use of the Service. You are responsible for maintaining up to date credit card information in your Account.
4.2 Unless otherwise agreed by Vision Media and you, all fees are payable in U.S. Dollars. Late payments of fees may bear interest at the rate of one and one half percent (1.5%) per month (or the highest rate permitted by applicable law, if less). Fees are exclusive of taxes or other charges. You are responsible for paying all taxes and government or other charges, and all reasonable expenses and attorneys’ fees Vision Media incurs collecting late fees. Vision Media reserves the right to suspend or terminate your use of the Service (and access to your Content (as defined below) if you fail to pay any fees due in connection with your use of the Service. Any outstanding fees are immediately due and payable upon termination of your use of the Service for any reason.
4.3 To the greatest extent permitted by applicable law, and without affecting your credit card issuer’s rights, you hereby waive all claims relating to fees unless you notify Vision Media of any dispute or
other fee-related claim within thirty (30) calendar days of the fees being charged to your credit card.
4.4 To the greatest extent permitted by applicable law, any refunds of fees are at the sole discretion
of Vision Media, and refunds will only be provided in the form of a credit against future fees for the Service. Nothing in these Terms obligates Vision Media to extend credit to any person. You acknowledge and agree that any credit card and related billing and payment information that you provide to Vision Media may be shared by Vision Media with third party service providers who work on Vision Media’s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Vision Media and servicing your Account. Vision Media may also provide information in response to valid legal processes, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Vision Media shall not be liable for any use or disclosure of such information by such third parties.
4.5 Vision Media may change its fees, payment terms and Quota thresholds at its discretion;
provided however, that such changes will not take effect for you until your next monthly billing cycle. You will be notified of any such changes (including notices posted on the Site or sent to your registered e-mail address).
5. Service Availability & Support.
5.1 Vision Media will make the Service available to you consistent with the manner in which
Vision Media makes the Service generally available to other users of the Service, including with the same features and functionality, upgrades, new features, and the Service Level Agreement (“SLA”). Vision Media may add to, change or remove any part, term of condition of the SLA, or add separate SLA’s for existing or new portions of the Service, at any time without prior notice to you. It is your responsibility to check the SLA periodically for changes. By continuing to use the Service, you are indicating your acceptance of such changes. However, we will provide written notice to you of any significant changes to the SLA (including notices posted WEST\22041745.7
on the Site or sent to your registered e-mail address). Vision Media does not make any representations or guarantees regarding uptime or availability of the Service unless specifically identified in the SLA.
5.2 The Service may be unavailable at certain times as specified in the SLA, including during any
unanticipated or unscheduled downtime or unavailability of all or any portion of the Service as a result of system failures or force majeure events described in Section 19.7. Vision Media will use commercially reasonable efforts, circumstances permitting, to provide information regarding any such Service interruptions and the restoration of use of, and access to, the Service following any Service interruption, including by information posted on the Site or sent to your registered e-mail address.
5.3 Vision Media may temporarily suspend your access to any portion or all of the Service and
your Content if Vision Media reasonably determines that: (a) there is a threat or attack on the Service (including a denial of service attack) or other event that may create a risk to the Service, you or any other Service user; (b) your use of the Service or your Content disrupts or poses a security risk to the Service or any other Service user, may harm Vision Media’s systems or any other Service user, or may subject Vision Media or any third party to liability; (c) you are using the Service for fraudulent or illegal activities; (d) subject to applicable law, you have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (e) you are using the Site, Service or other Vision Media property in breach of these Terms; (f) you are in default of your payment obligations hereunder; or (g) there is an unusual spike or increase in your use of the Service (collectively, “Service Suspensions”). Vision Media will make commercially reasonable efforts, circumstances permitting, to provide written notice of any Service Suspension to you (including notices posted on the Site or sent to your registered e-mail address) and to provide updates regarding resumption of the Service following any Service Suspension. Vision Media will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension and you will not be entitled to service credits under the SLA for any Service Suspension.
5.4 Vision Media will provide customer support to you as is generally made available without charge to other users of the Service.
6.1 Vision Media will use commercially reasonable efforts to establish and maintain administrative, technical and physical safeguards in connection with Vision Media’s internal data center
facilities, servers, networking equipment, and host software systems that are within Vision Media’s reasonable control, and that are used to provide the Service, that are designed to: (a) protect the security and integrity of the Vision Media network; (b) guard against anticipated threats or hazards to the security and integrity of the Vision Media network; and (c) protect against the accidental or unauthorized access, use, alteration or disclosure of your Content. The safeguards will be at least equal to the generally accepted security standards within the IT industry.
6.2 You are solely responsible for properly configuring and using the Service and taking your own
steps to maintain appropriate security, protection and backup of your Content, including using encryption technology to protect your Content from unauthorized access and routinely archiving your Content. Except as set forth in Section 6.1 above, Vision Media is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of, your Content or other data that you submit or use in connection with your Account or the Service. WEST\22041745.7
7. Vision Media’s Proprietary Rights.
7.1 You hereby acknowledge and agree that Vision Media (or its licensors) own all legal rights,
titles, and interest in and to the Site and Service, including, without limitation, any intellectual property or other proprietary rights which subsist in the Site and Service (whether such rights are registered or unregistered, and wherever in the world those rights may exist). As between you and Vision Media, all materials on the Site, including, but not limited to, graphics, user and visual interfaces, images, software, applications, and text, as well as the design, structure, selection, coordination, expression, “look and feel”, and arrangement of the Site and its content (except for your Content), and the domain names, trademarks, service marks, proprietary logos and other distinctive brand features found on the Site, are all owned by Vision Media or its licensors.
7.2 Nothing in these Terms gives you any right to use any of Vision Media’s trade names,
trademarks, service marks, logos, domain names, and other distinctive brand features. All rights not expressly granted by Vision Media under these Terms are reserved.
7.3 Subject to your compliance with these Terms, including, without limitation, your payment of
all applicable fees, Vision Media hereby grants you a limited, personal, worldwide, royalty-free, nontransferable, non-sublicensable and non-exclusive license to use the Service for your internal business use, to store and manage your Content in such manner as permitted and/or specified by Vision Media from time-totime in any applicable documentation or applicable Service descriptions. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by Vision Media, in the manner permitted by these Terms.
7.4 During, and after the termination of, your use of the Service, you will not assert, nor will you
authorize or assist any third party to assert, against Vision Media or any of the Vision Media Parties (as defined below), any patent infringement claim with respect to the Service.
8. Service Use Restrictions.
8.1 You hereby represent and warrant that you will not, and will not permit any third party to: (a)
attempt to disable or circumvent any security mechanisms used by the Site or Service or otherwise attempt to gain unauthorized access to any portion or feature of the Site or Service, or any other systems or networks connected to the Site or Service, or to any Vision Media server, by hacking, password “mining”, or any other illegal means; (b) use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Site or Service; (c) use any device, software or routine to interrupt or interfere, or attempt to interrupt or interfere with, the proper operation and working of the Site or Service or any transaction being conducted on the Site or through the Service, or with any other person’s use of the Site or Service; (d) breach any security measures implemented on the Site or in the Service; (e) track or seek to trace any information on any other person who visits the Site or uses the Service; (f) forge headers or otherwise manipulate identifiers in order to disguise your identity, or the origin of any message or other communication that you send to Vision Media in connection with the Service; (g) pretend that you are, or that you represent, someone else, or impersonate any other person; (h) use the Service or Site for any illegal purpose, for soliciting the performance of any illegal
activity, or as otherwise prohibited by these Terms or applicable laws, rules or regulations, including, without limitation, laws applicable to the export of software and data; (i) upload or otherwise process any malicious content to, or through, the Service; or (j) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the any Vision Media proprietary software used to provide, maintain, or otherwise applicable to, the Service, or made available to you in connection with the Service. WEST\22041745.7
8.2 You hereby agree that you will notify Vision Media if you become aware that the Site or Service is being used for any illegal or unauthorized purpose.
9. Your Content & License from You.
9.1 You hereby agree that you are solely responsible and liable for any and all information, data
files, written text, computer software, music, audio files or other sounds, photographs, videos, images, and other content (collectively “Content”) that you store, transmit, display, or otherwise use in connection with the Service, and for the consequences of your actions in connection with such Content and your use of the Service. You agree that Vision Media has no responsibility to you or to any third party in connection with such Content. You are solely responsible for any losses or damage suffered by Vision Media in connection with your Content. You hereby represent and warrant that you will not store or otherwise use any Content in connection with the Service that: (a) violates these Terms; (b) is defamatory, libelous, abusive, illegal, profane, indecent, pornographic, obscene, hateful, offensive, harassing, or threatening in any way; (c) constitutes or encourages conduct that would be considered a criminal offense or give rise to civil liability, or otherwise intentionally or unintentionally violate any law, rule or regulation; (d) violates any third party’s copyright, trademark, patent, trade secret, or other personal or proprietary right; (e) invades or interferes with the rights of privacy or publicity
of any person; or (f) contains a virus, malicious code or any other harmful component.
9.2 Vision Media reserves the right, at any time in its sole discretion and without notice to you, to
pre-screen, review, monitor, flag, filter, modify, refuse or remove any or all Content from the Service, but Vision Media has no obligation to do so. You agree to immediately take down, delete or modify any Content that is stored by you through the Service that violates these Terms or any applicable laws, rules, or regulations, including pursuant to a take down, deletion or modification request from Vision Media. In the event that you elect not to comply with a request from Vision Media to take down, delete or modify certain Content, Vision Media reserves the right to directly take down, delete or modify such Content. Vision Media assumes no liability or responsibility arising from your activities in connection with the Service, including, without limitation, Content that you store or otherwise use in connection with the Service.
9.3 Vision Media claims no ownership or control over your right, title and interest in your Content.
You retain copyright and any other intellectual property and other proprietary rights you already hold in your Content, and you are solely responsible for protecting those rights, as you deem appropriate. By submitting, storing, displaying, or otherwise using your Content in connection with the Service, you hereby grant Vision Media a worldwide, royalty-free, fully-paid-up, non-exclusive license to reproduce, perform, adapt, reformat, display, distribute, and otherwise use such Content for the purpose of enabling Vision Media to provide the Service to you, including, without limitation, storing and retrieving the Content, making the Content available through the Service, reformatting and adapting the Content for technical display and transmission, conforming the Content to the limitation and terms of the Service, and any other use related to the maintenance, provision and improvement of the Service.
9.4 You hereby agree that Vision Media, in its sole discretion, may use your trade names,
trademarks, service marks, logos, domain names, and other distinctive brand features, in presentations,
marketing materials, customer lists, financial reports and web site listings (including links to your web site) for the purpose of advertising or publicizing the Service.
9.5 Vision Media will not disclose any of your Content, except: (a) if you expressly authorize us
to do so in connection with your use of the Service; (b) as necessary to provide the Service to you; or (c) to comply with the request of any governmental or regulatory body, subpoenas or court orders, or as otherwise required by applicable law, rule or regulation. If we receive a subpoena, court order, or other request from a governmental or regulatory body requesting the disclosure of any of your Content, we will use good faith efforts to provide you with reasonable notice to allow you to seek a protective order or other appropriate remedy WEST\22041745.7 (except to the extent Vision Media’s compliance with the foregoing would cause it to violate a court order or other legal requirement). You are required to respond to third party requests about your Content, and we may provide your contact information to third parties, and suspend or terminate your access to the Service and your Content, if you fail to respond to such third party requests.
9.6 Vision Media may use usage patterns, trends and other statistical data derived from your Content and use of the Service for purposes of providing, operating, maintaining, or improving the Service.
10.1 If you send or transmit any communications or materials to Vision Media by mail, electronic
mail, telephone, or otherwise (“Feedback”), suggesting or recommending changes to our Site or Service,
including without limitation, new features or functionality relating thereto, any comments, questions,
suggestions, or the like, all such Feedback is, and will be treated as, non-confidential and non-proprietary. This means that you give up any claim that the use of such Feedback by Vision Media or its agents, violates any of your rights including moral rights, privacy rights, proprietary or other property rights, rights of publicity, rights to credit for material or ideas, or any other right, including the right to approve the way Vision Media uses such Feedback.
10.2 You hereby assign all right, title, and interest in, and Vision Media is free to use, without any
attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You agree and understand that Vision Media is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
11. Copyright Infringement.
11.1 Vision Media respects the intellectual property and other proprietary rights of others and has a
policy of removing content from the Site that infringes third party copyrights and suspending and/or terminating the Account of any user who uses the Site or Service in violation of copyright law, and where appropriate, blocking such user’s access to the Site and Service.
11.2 If you are a copyright owner, or an agent thereof, and believe that your work is the subject of
copyright infringement and appears on our Site, or is being used through the Service, you may submit a
notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our copyright agent (designated below) with the following information in writing: (a) your physical or electronic signature; (b) identification of the copyrighted work claimed to have been infringed; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Vision Media to locate such material; (d) information reasonably sufficient to permit Vision Media to contact you, such as an address, telephone number, and, if available, an e-mail address; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are, or that you are authorized to act on behalf of, the owner of an exclusive right that is allegedly infringed. Vision Media’s designated copyright agent to receive notifications of claimed infringement under the DMCA is:
29125 Avenue Paine
Valencia, CA 91355
11.3 Only DMCA or other intellectual property rights-related notices should be sent to the copyright agent; any other communications sent to the copyright agent will be destroyed.
12. Exclusion of Warranties.
12.1 YOUR USE OF THE SITE AND SERVICE IS ENTIRELY AT YOUR OWN DISCRETION
AND RISK. THE SITE AND SERVICE ARE FURNISHED TO YOU “AS IS” AND WITHOUT
WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. VISION MEDIA,
ON BEHALF OF ITSELF, AND ON BEHALF OF ITS PARENTS, AFFILIATES, SUBSIDIARIES,
LICENSORS AND THIRD PARTY SERVICE PROVIDERS, AND VISION MEDIA’S AND THEIR
DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS,
(COLLECTIVELY, THE “VISION MEDIA PARTIES”): (A) EXPRESSLY DISCLAIMS ALL
WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING,
WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE,
MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT WARRANT
THAT THE SERVICE, OR DATA PROVIDED THROUGH THE SERVICE, WILL MEET YOUR
REQUIREMENTS, OR THAT ITS OPERATION WILL BE TIMELY, UNINTERRUPTED, SECURE, OR
ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (C) DOES NOT WARRANT OR
MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE RESULTS OF
THE USE OF THE SERVICE IN TERMS OF ITS ACCURACY, RELIABILITY, TIMELINESS,
COMPLETENESS, OR OTHERWISE. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF
12.2 THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU
AND VISION MEDIA. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VISION
MEDIA OR ANY PERSON ON BEHALF OF VISION MEDIA SHALL CREATE A WARRANTY OR
CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.
12.3 NOTHING IN THESE TERMS, THIS SECTION 12, OR SECTION 13 BELOW, SHALL
EXCLUDE OR LIMIT VISION MEDIA’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT
BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
13. Limitation of Liability.
13.1 SUBJECT TO SECTION 12.3 ABOVE, IN NO EVENT WILL VISION MEDIA OR THE
VISION MEDIA PARTIES BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES
OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR
DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF
USE OF, THE SERVICE, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR CONTENT,
COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER
COMMERCIAL LOSS, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON
CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT
LIABILITY), EVEN IF VISION MEDIA OR THE VISION MEDIA PARTIES HAVE BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
13.2 VISION MEDIA AND THE VISION MEDIA PARTIES WILL NOT BE LIABLE TO YOU
OR ANY THIRD PARTY FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY
OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER
LEGAL THEORY RELATED TO THE SITE OR SERVICE. IF, NOTWITHSTANDING THE
FOREGOING, VISION MEDIA OR ONE OF THE VISION MEDIA PARTIES IS FOUND TO BE LIABLE
TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN
CONNECTION WITH THESE TERMS OR THE SERVICE, VISION MEDIA OR THE RELEVANT
VISION MEDIA PARTY’S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY
SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO VISION
MEDIA DURING THE ONE (1) YEAR PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE
TO VISION MEDIA OR THE VISION MEDIA PARTY’S LIABILITY.
14.1 You hereby agree to indemnify, defend and hold harmless Vision Media and the Vision Media
Parties (each an “Indemnified Party”), from and against any and all liability and costs (including, without limitation, attorneys’ fees and costs) incurred by the Indemnified Party(s) in connection with any actual or alleged claim arising out of: (a) your use of the Service; (b) any breach or alleged breach by you of these Terms; (c) any Content or Feedback provided by you; (d) any breach or alleged breach by you of a third party’s rights, including, without limitation, any intellectual property, privacy or publicity rights; (e) any damage caused by or alleged to have been caused by you to the Site or Service; or (f) any actual or alleged violation or noncompliance by you with any applicable law, rule or regulation.
14.2 Counsel you select for the defense or settlement of a claim must be consented to by Vision
Media and/or the Indemnified Party(s) prior to counsel being engaged to represent you and Vision Media and/or the Indemnified Party(s). You and your counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the Indemnified Party(s) in the defense or settlement of any claim. Vision Media and/or the Indemnified Party(s) reserves the right, at its own expense, to assume the exclusive defense or settlement, and control of any matter otherwise subject to indemnification by you. You shall not in any event consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interests of Vision Media or any Indemnified Party(s) without the prior written consent of Vision Media and/or the Indemnified Party(s).
15. Changes to Service.
15.1 Vision Media is constantly striving to provide the best possible experience for its Service users.
You acknowledge and agree that the form and nature of the Service which Vision Media currently provides may change from time-to-time without prior notice to you, subject to the terms in Sections 4.5, and 15.2. Changes to the form and nature of the Service will be effective with respect to all versions of the Service
(including the Superseded Version (as defined below)). Examples of changes to the form and nature of the Service include, without limitation, changes to fees and payment policies, security patches, additional functionality, reduced functionality, and other enhancements.
15.2 If Vision Media in its sole discretion chooses to cease providing the current version of the
Service, whether through discontinuation of the Service, or by upgrading the Service to a newer version, the current version of the Service will be maintained as an existing version and become the “Superseded Version.” Vision Media will issue an announcement if the current version of the Service will be superseded. For a period of [one hundred and eighty (180)] calendar days after such an announcement (the “SV Period”), Vision Media will use commercially reasonable efforts to continue to make the Superseded Version available and to respond to any problems with the Superseded Version, that Vision Media in its sole discretion, deems to be critical. During such SV Period, no new features or functionality will be added to the Superseded Version and the terms of the SLA will not apply to the Superseded Version.
16. Termination of Service.
16.1 You may stop using the Service at any time by closing your Account, or ceasing to use the
Service. In such event, you will not be entitled to any refund of any fees that you have paid prior to you ceasing to use the Service.
16.2 Vision Media reserves the right in its sole discretion to cease or suspend providing all or any
part of the Service, or the Superseded Version, immediately without any notice to you, if: (a) you breach, or threaten or intend to breach, these Terms; (b) Vision Media is required to do so under any applicable law, rule or regulation; (c) the Service or Superseded Version relies on data, services or another business relationship between Vision Media and a third party service provider, and such relationship terminates or changes in such a way that affects Vision Media’s ability to continue providing the Service or Superseded Version; (d) continuing to provide the Service or Superseded Version could create a substantial economic burden on Vision Media as determined by Vision Media in its sole discretion; or (e) continuing to provide the Service or Superseded Version could create a security risk or material technical burden as determined by Vision Media in its sole discretion.
16.3 If your use of the Service is terminated or suspended pursuant to Sections 16.1 or 16.2 above,
except to the extent prohibited by any applicable law, rule or regulation, you will have access to, and the ability to export, your Content for a period of thirty (30) calendar days following such termination or suspension. Fees will continue to be assessed based on your actual use of the Service during such period. Without limiting the foregoing, the rights set forth in this Section 16.3 are subject to your payment of any outstanding fees due upon and after termination of your use of the Service.
16.4 Any of your obligations under these Terms which by their nature are intended to survive the
the laws of the state of California, termination of your use of the Service, shall continue to apply to you after you cease to use the Service.
16.5 Vision Media may notify the relevant law enforcement authorities or other third parties, of any
illegal or other prohibited conduct by you, including, without limitation, your violation of these Terms or unauthorized use of the Site or Service.
17. Governing Law and Venue.
17.1 These Terms will be construed and enforced in all respects in accordance with without
reference to its choice of law rules. Except as set forth below in Section 17.2, the federal and state courts seated in the City and County of Los Angeles, California, shall have sole and exclusive jurisdiction for all purposes in connection with any action or proceeding that arises from, or relates to, these Terms and you hereby irrevocably waive any objection to such exclusive jurisdiction; provided however, that Vision Media may seek to enforce any judgment in its favor in any court of competent jurisdiction.
17.2 Notwithstanding the foregoing, Vision Media may seek injunctive or other equitable relief in
any court of competent jurisdiction to protect its proprietary and other rights. You agree that your breach of these Terms may result in immediate and irreparable damage to Vision Media for which there is no adequate remedy at law.
17.3 The United Nations Convention on Contracts for the International Sale of Goods in its entirety
is expressly excluded from these Terms, including, without limitation, application to the Site or Service.
Furthermore, these Terms (including without limitation, the Site and Service) will not be governed or
interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
17.4 Any cause of action arising under these Terms must be commenced by you within one (1) year after the claim or cause of action arises.
18. Third Party Web Sites.
18.1 The Site and Service may provide links to other web sites that are not owned or operated by
Vision Media (“Third Party Web Sites”). Vision Media provides these links to you as a convenience only,
and Vision Media does not verify, make any representations concerning, or take responsibility for, such Third Party Web Sites, or the products or services offered through such third party web sites, including, without limitation, the truthfulness, accuracy, quality, or completeness of the content of, or activities conducted on, such Third Party Web Sites. You should use your own independent judgment before accessing and using such Third Party Web Sites, or products or services offered through such third party web sites.
should review such Third Party Web Sites’ privacy policies, terms and conditions and business practices as they may be different to those of Vision Media and it is your sole responsibility to comply with such terms. Your dealings and communications with any third party in connection with the Third Party Web Sites are solely between you and such third party.
18.3 Any reference on the Site, or through the Service, to any product, process, publication or service
of any third party, by trade name, domain name, trademark, trade identity, service mark, logo, manufacturer or otherwise, does not constitute or imply Vision Media’s endorsement or recommendation thereof, and your use of any Third Party Web Sites and third party product, process, publication, or service is entirely at your own risk.
19. Miscellaneous Legal Terms.
between you and Vision Media with respect to the Service (excluding any services which Vision Media may provide to you under a separate written agreement), and completely supersedes, cancels and replaces any and all other written or oral agreements or understandings previously existing between you and Vision Media with respect to the Service.
19.2 The failure of Vision Media to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
19.3 If any part of these Terms is held invalid, illegal or unenforceable, that provision shall be
enforced to the maximum extent permissible so as to maintain the intent of these Terms, and the other parts will remain in full force and effect.
19.4 Any notice or other communications by Vision Media relating to the Service may be made by
letter, e-mail or posting on the Site, and you hereby consent to receive notices and other communications in electronic form to the extent permitted by applicable law.
19.5 These Terms shall not be interpreted or construed to confer any rights or remedies on any third
parties, except that each Indemnified Party shall be a third party beneficiary hereunder and accordingly, shall be entitled to directly enforce and rely upon any provision of these Terms that confers a right or remedy in favor of it.
19.6 Vision Media may assign or transfer its rights, or delegate any performance, under these Terms
to a third party in its sole discretion. You may not assign or otherwise transfer your rights, or delegate your WEST\22041745.7 performance, under these Terms to any third party without in each and every case, Vision Media’s express prior written consent.
19.7 Vision Media will not be liable for failing or delaying performance of its obligations resulting
from any condition beyond its reasonable control, including but not limited to, governmental action, acts of the common enemy, earthquake, fire, flood or other acts of God, the elements, epidemics, labor conditions, power failures, and Internet disturbances.
19.8 Vision Media may take any legal action against you to enforce these Terms or to prevent the
breach of these Terms, including, without limitation, seeking equitable remedies or using technical means at its disposal. In addition to any other legal, equitable or technical rights and remedies that it may have, Vision Media may without limitation, immediately terminate or suspend your use of the Service and access to your Content, if Vision Media believes in its sole discretion that you are violating these Terms, or that you intend to do so.
19.9 Vision Media may add to, change or remove any part, term or condition of these Terms, the
19.10 You may not access the Service if you are a direct competitor of Vision Media, except with our
prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes.
© 2023 Vision Media Corporation. All rights reserved.
VISION MEDIA SERVICE AGREEMENT
SERVICE LEVEL AGREEMENT
1. Service Level Agreement.
1.1 This Service Level Agreement (“SLA”) forms an integral part of the Vision Media Services Agreement (“Agreement”) that governs Company’s use of Vision Media’s proprietary digital asset management service (the “Service”).
1.2 Vision Media does not make any representations or guarantees regarding uptime or availability of the Service unless specifically identified in this SLA.
1.3 Capitalized terms that are used, but not defined in this SLA, will have the meanings specified in the Agreement. The following definitions shall apply to this SLA:
1.3.1 “Force Majeure Downtime” means downtime during which the Service is Unavailable because of a Force Majeure Event.
1.3.2 “Force Majeure Event” means any condition beyond Vision Media’s reasonable control, including, but not limited to, governmental action, acts of the common enemy, earthquake, fire, flood, or other acts of God, the elements, epidemics, labor conditions, power failures, systems failures, Internet access, disturbance or related problems.
1.3.3 “Incident” means any set of circumstances resulting in a failure of the Service to meet the Service Level.
1.3.4 “Incident Period” means a period of five (5) minutes.
1.3.5 “Planned Downtime” means planned unavailability of the Service during which Vision Media or its third-party service providers perform system upgrades, enhancements and routine maintenance activities.
1.3.6 “Request” means a request submitted by Company to Vision Media pursuant to this SLA, for a Service Credit on the basis of an Incident experienced by Company.
1.3.7 “Service Availability” is calculated by subtracting from 100%, the percentage of Incident Periods during the Service Year in which the Service is Unavailable. If Company has been using the Service for less than 365 days, Company’s Service Year is still the preceding 365 days, but any days prior to Company’s use of the Service will be deemed to have had 100% Service Availability. Service Availability measurements exclude downtime resulting directly or indirectly from any Service Level exclusions specified in Section 6 of this SLA.
1.3.8 “Service Credit” means the percentage of the monthly Service fees that are credited to Company based on a Request that Vision Media has investigated and deems to be sufficient grounds for Company to receive a Service Credit.
1.3.9 “Service Year” means the preceding 365 days from the date of an Incident that is the subject of a Request. WEST\22041745.7
1.3.10 “Unavailable” means that the Service cannot be accessed and used during an Incident Period.
2. SLA Updates.
2.1 Vision Media may add to, change or remove any part, term or condition of this SLA, or add separate SLA’s for existing or new portions of the Service, at any time without prior notice to Company; provided however, that such changes will not take effect for Company until Company’s next monthly billing cycle. Company will be notified of any such changes (including notices posted on the Site or sent to the primary contact e-mail address provided by Company). Modifications to this SLA which affect Company’s eligibility for a Service Credit, will apply to all Requests for Service Credits made after this SLA is modified, regardless of when the Incident giving rise to Company’s eligibility for the Service Credit actually occurred.
3. Service Level.
3.1 Vision Media will use commercially reasonable efforts to make the Service available with aService Availability of at least 99.95% (the “Service Level”). If Vision Media does not meet the Service Level, and Company otherwise meets its obligations under this SLA, Company may be eligible to receive a Service Credit as described below. This SLA states Company’s sole and exclusive remedy, and Vision Media’s sole and exclusive obligation, for any failure by Vision Media to provide the Service.
3.2 To make a Request, Company does not have to wait 365 days from the day Company started using the Service, or 365 days from Company’s last successful Request. Company may make a Request any time the Service Level during the trailing 365 days does not meet the Service Level. Any downtime occurring prior to a successful Request for a Service Credit cannot be used for future Requests.
4. Request for Service Credit.
4.1 In order to be eligible to receive a Service Credit, Company must: (i) first have notified Vision
Media customer support of the Incident, using the procedures specified below, within five (5) business days following the Incident; and (ii) be current in payment of all fees due to Vision Media. Company should report any Incident to Vision Media customer service by sending an e-mail message to sla firstname.lastname@example.org.
4.2 To submit a Request, Company must contact Vision Media customer support and inform them of Company’s intention to submit a Request. Company must provide Vision Media customer support with all reasonable details regarding the Request, including but not limited to, detailed descriptions of the Incident(s), the time, date, and duration of the Incident, and any attempts made by Company to resolve the Incident.
4.3 In order for Vision Media to consider a Request, Company must submit the Request, including
sufficient evidence to support the Request, within thirty (30) calendar days of the Incident that is the subject of the Request.
4.4 Vision Media will use all information reasonably available to it to validate a Request and to make a good faith judgment as to whether this SLA and the Service Level apply to the Request.
4.5 Failure to comply with these requirements will result in the loss of Company’s ability to receive
a Service Credit.
5. Issuance of Service Credits.
5.1 If Company’s Request is validated, Vision Media will issue a Service Credit to Company’s Account. The Service Credit will be in the form of credits applicable to future days of Service. Service Credits will be applied on the first day of Company’s next monthly billing cycle after the Request is approved, against fees due by Company based on the Quota Company has selected for such month (“Monthly Quota Charge”). Once issued to Company’s Account, Service Credits may not be carried over to a subsequent billing cycle. Service Credits may not be applied against fees payable for the Service to the extent Company exceeds Company’s monthly Quota, and the Monthly Quota Charge expressly excludes such additional fees.
5.2 In the event the Service Availability does not meet the Service Level, and subject to Company’s
compliance with the terms of this SLA, Company may be entitled to a Service Credit of 10% of Company’s applicable Monthly Quota Charge.
5.3 The Service Credits awarded to Company in any billing month will not, in any circumstances, exceed Company’s monthly Service fees for the Quota that Company has selected at the start of such month.
6. Service Level Exclusions.
6.1 This SLA and the Service Level do not apply to, and Company is not entitled to receive any Service Credits if the Service is Unavailable, or if Company experiences any other Service-related performance issues, arising from, or relating to, the factors specified below. If Service availability is impacted by factors other than those set forth below, Vision Media may issue a Service Credit considering such factors in Vision Media’s sole discretion.
• Company or any Company Authorized User’s use of the Service in violation of the Agreement;
• Issues relating to Company Content;
• Planned Downtime;
• Force Majeure Downtime;
• Company’s use of the Service to the extent it exceeds Company’s monthly Quota;
• Service Suspensions;
• Problems caused by Company or any Company Authorized User’s use of the Service after Vision Media advised Company or any Company Authorized User to modify its use of the Service, if Company or any Company Authorized User did not modify its use as advised;
• Problems attributable to the acts or omissions of Company, any Company Authorized User, or any of Company’s agents, contractors or vendors, or anyone gaining access to the Service by means of Company’s Account, any Company Authorized User’s username or password to Company’s Account, or Company or any Company Authorized User’s equipment;
• Problems arising from Company or any third party’s software, hardware, or other technology or equipment; or
• Problems arising from any act or omission on the part of Company, any Company Authorized User,
or any third party.