Video Desk - Terms of Service

VIDEO DESK TERMS OF SERVICE

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

Section 1. Video Desk Terms of Service

1.01 Purpose of Site

Video Desk is a service provided and operated by Deskshare Inc., hereby referred to as "Video Desk". Video Desk's services include, but are not limited to: the hosting of Customer's streaming media and related files on Video Desk's servers (that portion of the server allocated for Customer's use is hereafter referred to as "Customer's Allotted Space"). Video Desk may provide any other services, as necessary, for the operation of its business.

1.02 Term/Length of Agreement

The term of this Agreement shall be month-to-month from the Effective Date of the Agreement or for the specified term of service as identified by the "Package" that Customer subscribes to. For purposes of this Agreement, the "Effective Date" shall be the date on which Video Desk delivers notification of account or service activation to Customer with regard to Customer's order.

1.03 Price and Payment

Customer agrees the use of the Service is subject to Video Desk's "Price and Payment Policy" as defined in Section 2.

1.04 Cancellation of Service by Video Desk

Customer agrees the use of the Service is subject to Video Desk's "Cancellation Policy" as defined in Section 3.

1.05 Acceptable Use

Customer agrees the use of the Service is subject to Video Desk.

1.06 Service Level

Customer agrees the use of the Service is subject to Video Desk's "Service Level Agreement" as defined in Section 5.

1.07 Copyright & Trademark

Customer agrees the use of the Service is subject to Video Desk's "Copyright & Trademark Policy" as defined in Section 6.

1.08 Abuse Notification

Submitting notification of abuse, copyright or trademark infringement to Video Desk is provided in Section 7.

1.09 Security and Integrity of Customer's Media

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

1.10 Disclaimer of Warranty

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

1.11 Limitation of Liability

UNDER NO CIRCUMSTANCES WILL VIDEO DESK 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 VIDEO DESK FOR THE SERVICE FOR WHICH DAMAGES ARE CLAIMED. IN NO EVENT SHALL VIDEO DESK 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 VIDEO DESK BE LIABLE TO CUSTOMER FOR ANY MARKETING, ADVERTISING, PROMOTIONAL EXPENSES OR ANY EXPENSES RELATED TO THE CUSTOMER'S USE OF VIDEO DESK'S SERVICE, REGARDLESS OF ANY EVENT, INCLUDING INTERRUPTION OF VIDEO DESK'S SERVICE, OR VIDEO DESK'S REMOVAL OF CUSTOMER'S MATERIAL.

1.12 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 Video Desk's services.

1.13 Governing Law

The laws of the State of New York shall govern the validity, construction and performance of this Agreement.

1.14 Arbitration

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

1.15 Assignment and Account Ownership

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

1.16 General Provisions

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

1.17 Amendment of Agreement

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

1.18 Notices

Video Desk reserves the right to contact our users regarding important product or policy announcements and to satisfy legal requirements. All legal notices to Video Desk should be submitted to support.

Section 2. Video Desk Price and Payment Policy

2.1 Price and Payment.

Customer shall pay Video Desk monthly recurring fees, in U.S. Dollars, as indicated at http://www.videodesk.net or, if a written Video Desk Ancillary Services Agreement accompanies this document, as indicated by those terms, which include charges for use and occupancy of Customer's Allotted Space. In addition to any recurring fees, Customer may be charged non-recurring fees as indicated at this same Web site, or as a written Video Desk Ancillary Services Agreement specifies. Video Desk reserves the right to increase prices upon the expiration of the Customer's contracted term. Price increases shall be posted on Video Desk's web site 30 days prior to taking effect. Video Desk agrees to submit written notice to the primary email on record for the Customer at least 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, unless otherwise stated. It is our policy to bill our clients on a monthly basis, and in the absence of any agreement or arrangement to the contrary, we expect to be paid no later than the due date stated on the invoice. Our monthly statements will be itemized as to each general activity.

2.2 Method of Payment.

Video Desk accepts payment by Credit Card, Check, and Postal Money Order. All funds shall be in U.S. Dollars. Customers submitting payment in foreign currencies will incur a $5.00 (U.S. Dollar) conversion fee. Video Desk accepts Visa, MasterCard, and American Express credit cards.

2.3 Credit Card Charge-backs

Anytime a Charge-back Request is received from our Merchant bank, Video Desk reserves the right to immediately suspend Customer's Account until the Charge-back Request has been formally resolved between Video Desk and the Merchant Service Authority. This process may take up to, and possibly more than, a week. If you are disputing a billing error, Video Desk encourages Customer to first contact Video Desk's Customer Service to resolve any discrepancies to avoid having Customer's Account suspended upon notification of a Charge-back. Video Desk reserves the right to refuse any additional service to Customer while a Charge-back Notice is pending investigation by the Merchant Service Authority.

Section 3. Video Desk Cancellation Policy

3.1. Cancellation of Service by Video Desk.

Video Desk 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, Video Desk is not obligated to reimburse any unused fees. Upon request of Customer, Video Desk shall return all Customer materials.

3.2. Cancellation of Service by Customer.

Customer shall have the right to terminate this Agreement upon 30 (thirty) days written notice to Video Desk, unless a written Video Desk Ancillary Services Agreement specifies otherwise. Video Desk is not obligated to reimburse any unused fees. Customer is responsible for removing their materials from their allotted space on Video Desk's servers and Video Desk will not be responsible for storage and preservation of Customer's materials upon receipt of request for cancellation.

Section 4. Video Desk Acceptable Use Policy

4.1 Content of Customer's Materials

Video Desk does not actively monitor the Customer's material nor does Video Desk exercise any editorial control over the content of any material that the Customer uploads into Video Desk's service. However, Video Desk reserves the right to remove any and / or all of the Customer's material from Video Desk's service that are, in Video Desk's discretion, potentially illegal, a violation of Trademark and / or Copyright, or may subject Video Desk to liability, or violate the acceptable use policy stated below in this Agreement. Upon removal of the material, Video Desk shall notify Customer of the removal of the material, as well as the reason for removal. In no instance shall Video Desk be liable for the removal of the material.

4.2 Acceptable Use

This Agreement is designed to help protect Video Desk's customers and the Internet community from irresponsible or illegal activities. In the event that Customer violates this Agreement through improper use of the service, as depicted in section 4.3 below, Video Desk reserves the right to suspend or terminate the service without notice. Video Desk shall make reasonable efforts to advise Customer of the inappropriate behavior and offer any corrective action necessary. Video Desk reserves the right to immediately terminate its service to Customer for any flagrant or repeat violations of this Agreement.

4.3. Not Acceptable Use

Incidents that may cause the account to be terminated include, but are not limited to:

Harassment: using the service to threaten or harass.

Using the service for any purpose other than which it is intended.

Attempting to impersonate any person, using forged headers or other identifying information in a defamatory way.

Violation of Trademark and / or Copyrighted material. Upon receipt of a legal notice to "Cease" hosting of material, Video Desk will remove all related material until Customer has satisfactorily resolved the dispute.

Uploading any programs that may cause a disruption to the service.

Untimely payment of any and all amounts due.

Any action that violates the laws of applicable local, state, federal or international governmental bodies.

Sharing the account with anyone or re-selling the service.

Video Desk 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. Video Desk reserves the right to monitor or view material uploaded by Customer onto Video Desk's service at any time for the purpose of ensuring compliance with this Agreement.

4.4 Acceptable but Not Suitable Uses for Customer or Technical Support

In some cases, Customer's content may not violate Video Desk's "Acceptable Use" Policy, but yet be considered unsuitable for viewing or providing support in a professional environment shared by Video Desk's employees. Such content (hereinafter deemed "unsuitable content") may be offensive, vulgar, excessively provocative, violent, of an Adult nature, contain nudity, unsuitable language, or other nature that warrants the content unsuitable for viewing or listening.

While it is not Video Desk's policy to exercise censorship and remove content from our service that does not violate Video Desk's "Acceptable Use" Policy, any content that is considered unsuitable for viewing will NOT be played, viewed, encoded, captured, digitized, handled or otherwise, displayed in any way, by any Video Desk employee in the offices of Video Desk. All employees of Video Desk are permitted to use their own discretion in determining and rejecting content that is unsuitable for viewing or listening to for the nature of providing Customer Service or Technical Support. If employees encounter a Customer requesting support for such content, Video Desk's employees are required to notify Customer that suitable content for viewing must be uploaded into the account for any support to be made available, and only for suitable content, and that no support or customer service will be provided for unsuitable content.

4.5 Receipt of Copyright or Trademark Infringement Notification

If Video Desk receives a notification of claimed copyright or trademark infringement with regard to Customer's content, whereby the notification includes: a physical or electronic signature of the owner (or person authorized to act on behalf of the owner) of an exclusive right that is allegedly infringed; specific identification of the copyrighted, trademark or patented work claimed to have been infringed, or if multiple works are covered by a single notification, a list of each work claimed to have been infringed; information related to the work(s) reasonably sufficient for Video Desk to promptly locate the work (e.g. title of work, URL location) within Video Desk's Web site, Video Desk's Customer's Web site, or that of a third party Web site; information reasonably sufficient to permit Video Desk to directly contact the complaining party, such as a complete name and address, telephone number and / or email address; a statement that the complaining party has a good faith belief that use of the work(s) in the manner complained of is not authorized by the copyright owner, its agent or the law; a statement requesting that Video Desk take a specific act with respect to the alleged infringement (e.g., removal, access restricted or disabled; and a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, then Video Desk will take appropriate actions under the Digital Millennium Copyright Act and/or other applicable intellectual property laws, which may including disabling or removing the work(s) from service and/or suspend or terminate Customer's service and withhold Customer's content until the matter has been fully resolved by all parties and such resolution has been submitted in writing to Video Desk on terms mutually acceptable to Video Desk, or if court action of legal jurisdiction determines otherwise.

4.6 Media License Fees

Customer shall be responsible for insuring that Customer's content will comply with all applicable licensing requirements by federal, state, local, regulated and contractual licensing fees, as well as all requirements and fees of the Digital Millennium Copyright Act of 1998.

4.7 Modification of Media

In the event Customer wishes to modify, or otherwise change, the media on their Allotted Space, Customer shall have the privilege of doing so as long as compliance with the Terms and Conditions of this Agreement are met. If Customers using a Free Account wish to increase their allotted package disk-space and / or data-traffic, they may upgrade to a paid package by clicking on the Subscription banner. Customers who wish to upgrade from a lower paid package to a higher one should click the 'Upgrade' link in their home page.

Section 5. Video Desk Service Level Agreement

5.1. Service Availability - 95.0% Uptime Guaranty.

Video Desk uses best efforts to keep its service up and running. However, Video Desk cannot and will not guarantee 100% uptime of its service. Video Desk's service is guaranteed to be available and capable of forwarding IP packets ninety-five percent of the time, as averaged over the life of the Service Period, as defined in Video Desk's Term of Service Policy. Downtime shall consist of packet loss, which is sustained in excess of 50% for 15 consecutive minutes. If Video Desk sustains downtime (a disruption of service) of a duration of more than 36 (thirty-six) hours in aggregate, during the life of a Service Period, as defined in Video Desk's Term of Service Policy, then Customer may elect to cancel the Service / Contract, and Video Desk will reimburse Customer, on a daily pro-rated basis upon request, any fees paid to Video Desk for which service was unavailable and/or not rendered. For the calculation, Video Desk assumes a total of 30 Days within a Service Period, which provides a total of 720 hours. Video Desk guarantees 95.0% of this time period, or 684 hours to be free of downtime, as defined in this paragraph.

Customer shall remain liable to Video Desk for all other fees associated with the service, prior to the termination of the service. This guarantee shall not apply for disruption of service to end-user that is due to network congestion on the Internet or other related disruptions on the Internet that are not related to Video Desk's service. It is very possible that Video Desk's service is fully operational, but the end-user's access to the media is disrupted by means of independent backbone carrier issues. Customer must provide information supporting the claim of this Service Level Agreement violation such as trace route and / or PING data produced during the time of the incident.

5.2. Notice of Violation of Service Level Agreement.

To terminate the contract, Customer must give written notice within four business days of violation of this Service Level Agreement to support.

Section 6. Video Desk Copyright and Trademark Policy

6.1. Copyright.

The entire content of Video Desk's Service, including its Web site, is copyrighted, and all rights are reserved.

6.2. Trademark Reservation of Rights.

DeskShare the owner and operator of Video Desk (hereinafter referred to as Video Desk), and / or its licensors, is the exclusive owner of all right, title, and interest in Video Desk's Marks and Video Desk's logos. No person or entity may reproduce or use (or authorize the reproduction or use of) the Video Desk Marks or Video Desk logos in any manner other than expressly authorized by Video Desk. Unauthorized use of Video Desk's Marks or Video Desk's logos is strictly prohibited. Video Desk, VideoDesk.net, are the trademarks of DeskShare Inc.

Section 6. Abuse Notification

7.1 All Claimed Infringement of Copyright, Trademark or Patents.

All notification of claimed infringement related to any content, which includes any and all text, graphics, images, illustrations, video, audio, animation, designs or logos, of Video Desk or that of Video Desk's Customers, whether displayed on Video Desk's Web site, Video Desk's Customer's Web site, or on the Web site or email of a third or independent party, should be a written communication addressed to the designated Video Desk Contact. All notification to either or both contacts should comply or substantially comply with the Digital Millennium Copyright Act, which includes substantially all of the following:

A physical or electronic signature of the owner (or person authorized to act on behalf of the owner) of an exclusive right that is allegedly infringed

Specific identification of the copyrighted, trademark or patented work claimed to have been infringed, or if multiple works are covered by a single notification, a list of each work claimed to have been infringed

Information related to the work(s) reasonably sufficient for Video Desk to promptly locate the work (e.g. title of work, URL location (complete Web site address) within Video Desk's Web site, Video Desk's Customer's Web site, or that of a third party Web site, etc.)

Information reasonably sufficient to permit Video Desk to directly contact the complaining party, such as a complete name and address, telephone number, and an email address

A statement that the complaining party has a good faith belief that use of the work(s) in the manner complained of is not authorized by the copyright owner, its agent, or the law

A statement requesting that Video Desk take a specific act with respect to the alleged infringement (e.g., removal, access restricted or disabled) and

A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

All notifications should be submitted to support.

7.2 Notification of Claimed Infringement of Third Party Postings

Like an Internet Service Provider that provides Web site hosting services for their customers, Video Desk provides media hosting services for Video Desk's Customers. Given that Video Desk may host a million or more data files of media at any given time, Video Desk cannot and does not actively monitor, endorse, approve, screen, or consider the Customer's material, nor does Video Desk exercise any editorial control over the content of any material that Video Desk's Customer uploads into Customer's Account at Video Desk. As a Customer may activate Video Desk's services in real-time over the Internet, gaining immediate access to the service, Video Desk is limited in its time-to-action to block usage of the service to a Customer, and limited in its ability to block a Customer if such Customer re-subscribes to Video Desk's service under a unique identification or email address. Customers of Video Desk may display Customer's content on an auto-generated Web page at Video Desk, Customer's own Web site, the Web site of a third party or that via e-mail. Video Desk does reserve the right to remove any / or all of Customer's material from Video Desk's service, or to suspend the Customer's service, that are, in Video Desk's discretion, potentially illegal, a violation of Trademark and / or Copyright, or may subject Video Desk to liability, or violate Video Desk's Acceptable Use Policy. Upon receipt of a notification of claimed infringement of any Customer content, Video Desk shall notify that Customer of receipt of a notification of claimed infringement and provide that Customer with a copy of the notification submitted to Video Desk.

7.3 Video Desk Showcase Web pages

Video Desk's Showcase Web page is an online, customizable tool that is packaged with each Customer's Service that enables the Customer to self-generate a Web page that will present Customer's media to a viewer. Video Desk's Customers accomplish this by constructing a custom "link" that must include identifiable Customer and file information. Customer may then submit this custom "link" to a viewer by email, post on a Web site, or other similar means. When clicked on by the viewer, a Web page will auto-generate from a pre-defined template, around the Customer's media. These Showcase Web pages build in real-time inside the viewer's Web browser and do not exist as actual Web page files like ordinary Web site Web pages exist on a Web server. Given that Video Desk's Customers may create and send these auto-generated Web pages over the Internet at any given time, Video Desk cannot and does not actively monitor, endorse, approve, screen, or consider the Customer's material that Customer inserts into a Customer-generated Video Desk Showcase Web page, nor does Video Desk exercise any editorial control over such content. If a notification of Claimed Infringement or other violation is being submitted of any work displayed inside of a Video Desk Showcase Web page, it is essential that the complete "link" (full Web page URL) be provided to Video Desk in order to identify the Customer and specific file for which the infringement is being claimed. Otherwise, identifying the Customer and media file will prove nearly impossible.

7.4 All other claimed Infringement, Violation or Abuse

All other notification of claimed infringement, violation or abuse should be submitted to the designated Video Desk Contact depicted in section 7.1, with sufficient information to properly identify and research the claimed infringement, violation and / or abuse and to properly respond to the person or entity submitting the notification.