Terms and Conditions of Supply of SiteSeer’s Services
1. Definitions
1.1 SiteSeer
SiteSeer Ltd (registered in England with no. 4739823) of 43 Clarence Road, Stony Stratford, Milton Keynes MK11 1JE
1.2 Forbidden
Forbidden Technologies plc (registered in England with no. 3507286) of 2-4 St George's Road, London SW19 4DP
1.3 Agreement
means the agreement between SiteSeer and the Customer for the provision of Services.
1.4 SiteSeer Web Site
means the website of SiteSeer, available at www.siteseer.co.uk
1.5 Customer
means the person(s), organisation, firm or company by whom, or on whose behalf, this Agreement is entered into.
1.6 Services
means the provision of video production, video encoding and hosting services, or other services as stated in the Quotation, provided by SiteSeer to the Customer.
1.7 Order
means the instruction by the Customer to SiteSeer to provide the Services as defined in the Quotation, the order is subject to these Conditions.
1.8 Quotation
means SiteSeer’s definition of the Services to be provided which is communicated to the Customer before an Order is made.
1.9 Notification of Acceptance
means the notification that SiteSeer gives to the Customer that SiteSeer has accepted the Customer’s Order.
1.10 Acceptable Use Policy
means the definition of the acceptable use of SiteSeer’s Services.
1.11 Input Material
any video, other visual image data or audio data provided by the Customer to SiteSeer for the purposes of the video encoding service.
1.12 Output Material
means any data or other information provided by SiteSeer to the Customer representing encoded Input Material, excluding the video playback software.
1.13 Player Licence Fee
means the charges that are payable by the Customer to SiteSeer in the event that the Customer is hosting the internet videos that result from SiteSeer’s encoding services.
1.14 Absolute Hosting Limits
means the limits in the hosting service provided that if exceeded by the Customer will result in a breach in the Acceptable Use Policy.
1.15 Hosting Set Up Fee
means the set up charges that are payable by the Customer to SiteSeer when SiteSeer provides a hosting service.
1.16 Payment Period
means the frequency with which the Customer will be charged for hosting services.
1.17 Fees
means the fees set out in the Quotation payable by the Customer in consideration for the Services together with any other charges made pursuant to this Agreement.
1.18 Maximum Hosting Limits
means the level of hosting services provided to the Customer as outlined in the Quotation or otherwise agreed between SiteSeer and the Customer.
1.19 Maximum Data Transfer Limit
means the maximum data transfer that can take place before a higher level of hosting Service is required.
1.20 Maximum Web Space Limit
means the maximum web space that can be used before a higher level of hosting Service is required.
1.21 Live Event
means an internet video stream that is shown on the internet for viewers to watch concurrently.
1.22 Content
means any video, other visual image data or audio data that is: provided by the Customer to SiteSeer for the purposes of the video production, encoding and hosting services; results from the video production and encoding services provided by SiteSeer to the Customer, excluding the video playback software.
1.23 Concurrent Viewers
Means the number of viewers of an internet video that are watching at the same time.
1.24 Upgrade
means an upgrade in the level of hosting services provided to the Customer.
1.25 Minimum Term
means the minimum amount of time that the hosting service shall be provided.
1.26 Minimum Notice of Termination
means the minimum notice that must be given by the Customer to SiteSeer to terminate hosting services.
2. Changes to Terms of the Conditions
2.1 SiteSeer may require to change the terms of the Conditions from time to time during the Term of the Agreement. In such an event, reasonable notification will be given by SiteSeer by the posting of any amended Conditions on the SiteSeer Web Site. It is the responsibility of the Customer to regularly check for any such notification. Following such notification, if the Customer does not wish to accept such change, the Customer may terminate the Agreement at any point during the Term by giving thirty days written notice to SiteSeer. If the Customer continues to use the Services following any changes having taken effect, such use of the Services will be deemed to constitute acceptance of any changes and the Customer will be bound by any new terms for the remainder of the Term.
3. Services
3.1 The Customer represents that it has the power and authority to enter into the Agreement and that in using the Services it will comply with this Agreement and any applicable legislation or licence.
3.2 SiteSeer reserves the right to refuse to accept an order for Services for any reason and without explanation.
3.3 SiteSeer will provide the Customer with a Quotation. Following receipt of a Customer Order, SiteSeer may accept the Order by sending a Notification of Acceptance. The terms of this agreement are not binding on SiteSeer unless and until SiteSeer sends a Notification of Accceptance. Where encoding services are to be provided, this will not normally be done until SiteSeer have received and examined the material to be encoded.
3.4 The Customer is responsible in all respects for the content and use of any material that is produced and utilised by SiteSeer for provision of Services. The Customer hereby undertakes that the material will not violate any applicable law and that it shall at all times comply with the Acceptable Use Policy outlined in 5.
3.5 Services will be provided in accordance with SiteSeer's technical specifications as from time to time published by it or as otherwise agreed by the Customer and SiteSeer.
3.6 The Customer shall at its own expense retain duplicate copies of all Input Material and insure against its accidental loss or damage. SiteSeer shall have no liability for any such loss or damage, however caused. All Output Material shall be at the sole risk of the Customer from the time of delivery to the Customer.
3.7 Unless otherwise agreed by SiteSeer and the Customer, all Output Material will include a discrete SiteSeer logo and click through to SiteSeer’s Web Site as illustrated by internet videos displayed on the SiteSeer Web Site.
4. Rights in Input Material and Output Material
4.1 In the event that the Customer hosts the internet videos that result from SiteSeer’s encoding services, the property and any copyright or other intellectual property rights in the Input Material and the Output Material belong to the Customer, unless otherwise agreed in writing by SiteSeer and the Customer, subject only to SiteSeer's use of the Input Material for the purposes of providing Services, and the provisions of paragraph 4.4 below.
4.2 In the event that SiteSeer provides a hosting service for the internet videos that result from SiteSeer’s encoding services, the property and any copyright or other intellectual property rights in the Input Material belong to the Customer, unless otherwise agreed by SiteSeer and the Customer. The copyright or other intellectual property rights in the Output Material belong to the Customer, subject to the provisions of paragraph 4.4 below. The Output Material will be the property of SiteSeer, unless it is agreed in writing between SiteSeer and the Customer that the internet videos will be hosted by the Customer; in which case a Player Licence Fee shall be paid by the Customer to SiteSeer and the internet video files shall be delivered to the Customer.
4.3 The Customer warrants that any Input Material and its use by SiteSeer for the purpose of providing Services will not infringe or breach the copyright or other rights of any third party or any legal or regulatory requirement relating to the contents thereof, and the Customer shall indemnify SiteSeer against any loss, damages, costs, expenses or other claims arising from any such infringment or breach.
4.4 The video encoding service is provided using SiteSeer's knowhow, and technology and other intellectual property rights used under licence to SiteSeer. Accordingly, the Customer shall not:
4.4.1 reverse compile or disassemble the object code version of the Output Material nor attempt to do any of the foregoing nor adapt or modify the whole or any part of the Output Material (save only that the aforegoing cannot be precluded by section 296A Copyright, Designs and Patents Act 1988);
4.4.2 copy (except for incidental copies as are necessary for the purposes of back-up and operational security), assign, transfer, sell, lease, rent, charge or otherwise deal with or encumber the Output Material or use the Output Material on behalf of any third party or make available the same to any third party, save by permitting the Output Materials to be viewed on the Customer’s website; or
4.4.3 remove or alter any acknowledgement of Forbidden's video compression intellectual property rights in any of the Output Materials, including any acknowledgement of intellectual property rights used under licence to Forbidden.
4.5 The Customer shall not remove or alter any acknowledgement of SiteSeer's Service unless otherwise agreed by the Customer and SiteSeer.
5. Acceptable Use Policy
5.1 The Customer shall not in any way utilise SiteSeer’s services: to store, display, transmit (including any re-transmission), sell, promote, advertise or distribute any material or information which is unacceptable as set out in 5.3.
5.2 The Customer shall not show any internet video, or other material, that has been, or is being, produced, encoded or hosted by SiteSeer on a web site (or on a web site that links to a web site) that is used: to store, display, transmit (including any re-transmission), sell, promote, advertise or distribute any material or information which is unacceptable as set out in 5.3.
5.3 Unacceptable material or information includes (but is not limited by) that which:
5.3.1 is (or is likely to) infringe (or could encourage the infringement of) any third party's Intellectual Property Rights; or
5.3.2 is (or is likely to be), in SiteSeer's sole opinion: false, misleading, fraudulent, obscene, indecent, defamatory, offensive, discriminatory, abusive, malicious, depicts or describes nudity or any sexual activities or practices, or is in any other way in bad taste or in bad faith; or
5.3.3 is (or is likely to be) in breach of any local, national or international criminal or civil laws or otherwise in violation of any law in any relevant jurisdiction.
5.4 The Customer shall not share or re-sell the Service without express written permission from SiteSeer.
5.5 The Customer shall not conduct a simulated Live Event through use of an on-demand internet video hosted by SiteSeer without prior written approaval from SiteSeer.
5.6 The Customer shall not exceed the Absolute Hosting Limits.
5.7 The use of any of SiteSeer’s Services or internet videos that have been encoded by SiteSeer, for "Spamming", or the sending of unsolicited e-mail, or using an email address or domain that is maintained by SiteSeer as reference, is strictly prohibited and will result in immediate termination of the Services. The same applies to inappropriate or bulk Newsgroup postings. If the Customer’s use of SiteSeer’s Services results in any of SiteSeer’s IP addresses being reported to any organisation that attempts to police and/or monitor abuse of the Internet, such as an organisation that maintains a list used by third parties for blocking spam, then this will also be grounds for termination of Services. SiteSeer’s hosting services may not be used as the source, intermediary or destination for spam, flames or mail bombs of any kind. SiteSeer reserve the right to charge a £20 penalty per unsolicited e-mail sent or inappropriate Newsgroup posting made. In addition, all costs associated with investigating "Spam" complaints will be charged to the violating customer.
6. Charges
6.1 The Customer shall pay the charges agreed with SiteSeer for the provision of Services.
6.2 All charges quoted to the Customer are exclusive of any Value Added Tax, for which the Customer shall be additionally liable at the applicable rate from time to time.
6.3 SiteSeer shall invoice the Customer immediately following completion of the video production and video encoding services and delivery of the Output Material.
6.4 SiteSeer shall invoice the Customer immediatley following set up of hosting services, for the hosting set up fee and the fees for the first Payment Period of hosting services. Thereafter, the Customer will be invoiced on the first day of every Payment Period for the hosting fees applicable to that Payment Period.
6.5 SiteSeer's charges (together with any applicable Value Added Tax), shall be payable within 30 days of the date of SiteSeer's invoice, unless otherwise agreed by SiteSeer and the Customer in writing.
6.6 If payment is not made on the due date, SiteSeer shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount (both before and after any judgement) at the rate of 4% above the base rate from time to time of Barclays Bank plc from the due date until the outstanding amount is paid in full.
6.7 In the event that the internet video files, which result from SiteSeer’s encoding services, are hosted by the Customer then a Player Licence fee shall be charged.
6.8 SiteSeer shall be entitled to review the Fees, from time to time, and shall notify the Customer of any increase in the Fees. Following such notification, the Customer shall be entitled, within 7 days of such notification, to terminate the Agreement with immediate effect. Any use of the Services by the Customer following such notification will deemed to be acceptance of the new Fees and will act as a waiver of the Customer's right to terminate.
7. Hosting Limits
7.1 It is the responsibility of the Customer to specifiy the level of hosting service required when submitting an order. SiteSeer will present the options for levels of hosting service available to the Customer in the Quotation. Depending on the level of hosting service selected, the Customer will be subject to the appropriate Maximum Hosting Limits as outlined in the Quotation, which may include the Maximum Data Transfer per Payment Period, Maximum Web Space and, in certain circumstances when hosting services are provided for a Live Event, the maximum number of required Concurrent Viewers. The Customer will also be subject to the Absolute Hosting Limits. In the event that the Customer, during the Term, exceeds its allocated hosting limits, SiteSeer will be entitled to do the following:
7.1.1 Where the Customer is exceeding any one of the Maximum Hosting Limits, SiteSeer shall inform the Customer of this and request that the Customer rectify the situation by either complying with the Limits or by requesting an Upgrade. In the event that the Customer fails to request an Upgrade and continues to exceed any one of the limits, after a reasonable period of time has elapsed, SiteSeer may automatically apply an Upgrade to the Customer's Services. Once an Upgrade has been effected the Customer will be liable to pay any additional Fees to SiteSeer as applicable.
7.1.2 Where the Customer is exceeding any one of the Absolute Hosting Limits, SiteSeer shall be entitled to suspend the Services with immediate effect. Such suspension will be notified to the Customer. Following such suspension, the Customer shall contact SiteSeer to advise whether it wishes to request an Upgrade or remedy the situation by complying with the Absolute Hosting Limits. During any such period of suspension and for the remainder of the Term, the Customer will be liable to pay to SiteSeer all Fees due.
8. Confidentiality
8.1 By submitting an Order the Customer provides SiteSeer with certain personal information or data. It is the responsibility of the Customer to keep the personal data provided to SiteSeer up to date.
8.2 The Customer consents to SiteSeer collecting, transmitting and storing such information about the Customer as is required for the purpose of administering their account. The Customer’s personal information will not ordinarily be made available to any third parties. However, SiteSeer may provide the Customer’s personal data to governmental or law enforcement agencies and other third parties with a legitimate reason for requesting the information.
8.3 If the Customer breaches the Agreement or otherwise jeopardises or compromises the integrity of SiteSeer’s hosting services, SiteSeer may take whatever steps it considers appropriate, to investigate and resolve any such matter. Without limitation, the Customer authorises SiteSeer to use the Customer's personal data and other information relating to the use of the Services in connection with any such investigation, including by disclosing it to any third party which has a legitimate interest in any such investigation or outcome.
8.4 The Customer may be subject to a standard credit check. The information that the Customer provides may be disclosed to a licensed credit reference agency which will retain a record of the search, and the Customer authorises SiteSeer to make such disclosures.
9. Termination
9.1 The Agreement shall continue in force for the Term provided that the Customer shall be entitled to terminate the Agreement at any time after the Minimum Term, by giving to SiteSeer, in writing, not less than the Minimum Notice of Termination.
9.2 Notwithstanding the provisions of clause 9.1, either party shall be entitled forthwith to terminate this Agreement by written notice to the other if :-
9.2.1 that other party commits any breach of any of the provisions of the Agreement and, in the case of a breach capable of remedy, fails to remedy the same within thirty days after receipt of a written notice giving particulars of the breach requiring to be remedied; or
9.2.2 an encumbrancer takes possession or a receiver is appointed over any of the property or assets of that other party; that other party makes any voluntary arrangement with its creditors or becomes subject to an administration order; that other party goes into liquidation or becomes bankrupt; the other party ceases or threatens to cease to carry on business or anything analogous to the foregoing under the law of any applicable jurisdiction occurs in relation to that other party.
9.2.3 Upon termination of the Agreement for whatever reason, SiteSeer may delete all Content relating to the Customer without any liability whatsoever.
9.2.4 Termination of the Agreement shall be without prejudice to any other rights or remedies a party may be entitled to thereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision on or after such termination.
9.2.5 Upon termination of the Agreement for whatever reason all due or outstanding Fees and expenses owed by the Customer to SiteSeer shall forthwith become due and payable. For the avoidance of doubt, if the Customer terminates the Agreement prior to the end of the Minimum Term, the Customer shall be required to pay all Fees due until the end of such Minimum Term.
9.3 SiteSeer may terminate permission to use Forbidden's video player and may terminate provision of hosting services for internet videos using Forbidden's video player, if Siteseer's license is terminated by Forbidden.
10. Warantee and Liability
10.1 SiteSeer warrants to the Customer that the Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the technical specifications as from time to time published by it.
10.2 SiteSeer gives no warranty that its hosting service, shall be uninterrupted or error-free. For the avoidance of doubt, any standards relating to the availability of the hosting service that are agreed between the Customer and SiteSeer are targets. While SiteSeer shall use reasonable endeavours to achieve the targets, any failure by SiteSeer to achieve the targets shall not constitute a breach of contract. SiteSeer accepts no liability for any loss whatsoever, suffered by the Customer, in the event that the hosting Services are interrupted, are not error free or if SiteSeer fails to achieve any specified targets.
10.3 SiteSeer shall not be liable to the Client by reason of any delay in performing, or any failure to perform, the Services, if the delay or failure was due to any cause beyond SiteSeer's reasonable control.
11. General
11.1 These Conditions constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
11.2 In the event of there being a conflict between the terms of these Conditions and the terms of the Quotation. The Quotation shall take precedence.
11.3 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.4 If any provision of the Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of the Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
11.5 The Customer shall not be entitled to sell, lease, sub-licence, assign or transfer the Agreement nor all or any of its rights and obligations hereunder without the prior written consent of SiteSeer.
11.6 SiteSeer reserves the right to assign or sub-contract any or all of its rights and obligations under this Agreement without the Customer's consent.
11.7 The provision of hosting services by SiteSeer does not express any implied approval of the hosted material by SiteSeer.
11.8 The Agreement does not and is not intended to create any right or benefit enforceable by any person not a party to it (within the meaning of the Contracts (Rights of Third Parties) Act 1999) except that a person who, under Clauses 11.4 and 11.5 above, is a permitted successor or assignee of the rights or benefits of a party, may enforce such rights or benefits.
12. Indemnity
12.1 EXCEPT IN RESPECT OF DEATH OR PERSONAL INJURY CAUSED BY SITESEER'S NEGLIGENCE, SITESEER SHALL NOT BE LIABLE TO THE CUSTOMER BY REASON OF ANY REPRESENTATION (UNLESS FRAUDULENT), OR ANY IMPLIED WARRANTY, CONDITION OR OTHER TERM, OR ANY DUTY AT COMMON LAW, OR UNDER THE EXPRESS TERMS OF THE CONTRACT, FOR ANY LOSS OF PROFIT OR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS, DAMAGE, COSTS, EXPENSES OR OTHER CLAIMS (WHETHER CAUSED BY THE NEGLIGENCE OF SITESEER, ITS SERVANTS OR AGENTS OR OTHERWISE) WHICH ARISE OUT OF OR IN CONNECTION WITH THE PROVISION OF VIDEO PRODUCTION, VIDEO ENCODING OR VIDEO HOSTING SERVICES OR THEIR USE BY THE CUSTOMER, AND THE ENTIRE LIABILITY OF SITESEER UNDER OR IN CONNECTION WITH THE CONTRACT SHALL NOT EXCEED THE AMOUNT OF SITESEER'S CHARGES TO THE CLIENT FOR THE PROVISION OF SERVICES.
13. Governing Law
13.1 English law shall apply to the Agreement for the provision of the Services, and the parties agree to submit to the non-exclusive jurisdiction of the English courts.