- Services. ScaleEngine Inc. (We, we, us and our) agrees to supply the services in accordance with the terms of this Contract. Customer agrees to receive the services from ScaleEngine Inc. in accordance with the terms of this Contract.
- Other Services. Upon request by Customer ScaleEngine Inc. may, at its option, provide Customer with technical and non-technical support, such as equipment reboots, troubleshooting, DNS and other support ("Other Services"), in connection with Customer's use of the service. If Customer decides to use these services, Customer acknowledges that their use of these services is entirely at their own risk, that our software is beta quality and can and does have problems that affect our service, and that no warranty or service level agreement exists for custom software, beta software, video streaming, or any other service that Customer requests or uses from us.
- Term. The term of this Contract will commence on the Effective Date and will continue thereafter for the term of one (1) month, unless terminated by either party as permitted by this Contract. This Contract shall automatically renew for a period of subsequent one (1) month periods unless written notice is provided by either party to the other at least 20 days prior to the expiration date, in which case the Contract will expire on said expiration date.
- Customer will pay ScaleEngine Inc. any one-time install fees and recurring monthly fees specified in the service table, as well as any charges for other services (on an estimated or actual basis). Upon 30 days or greater written notice prior to the end of the term, ScaleEngine Inc. may change any fees payable under this Contract. Customer will pay all taxes levied against or upon the services stipulated in the service table (as amended by the parties from time to time) or otherwise provided by ScaleEngine Inc. under this Contract (not including taxes based on ScaleEngine Inc.'s income).
- We cannot recover internet traffic from people who do not pay us, and we are not interested in collecting money from people who do not pay us. All fees are payable 15 days in advance. All recurring monthly fees will be payable monthly 15 days in advance. Monthly fees for internet traffic and charges for other services, which are not billed as recurring monthly fees, will be payable in advance based on estimated usage, and settled monthly in arrears. There are no exceptions to this, unless you are a Government.
- Production VSN accounts are PRE-PAID. You must always maintain sufficient funds in your account in order to stream video. By using our service, you authorize ScaleEngine Inc. to bill your credit card to maintain one month of funds based on estimated usage.
- Any payment not made when due will be subject to interest of two percent (2%) per month compounded monthly (equivalent to a yearly interest rate of 26.86%).
- If Customer's traffic usage fails to meet or exceed the amount specified as the minimum commitment in the bandwidth pricing section of the service table of this Contract, Customer will be billed in advance for the amount of the minimum commitment.
- ScaleEngine Inc. reserves the right to require a refundable security deposit, the amount of which will not exceed the total amount of 3 month's recurring charges.
- Service Level Agreement (SLA) and Support
- No service level agreement or warranty is provided for pay as you go video streaming network (VSN) accounts. We do not back up your VOD files, unless you specifically request and pay for this service. You must arrange and make your own backups of any VOD content.
- No support commitment, guarantee or SLA is provided for pay as you go video streaming network (VSN) accounts unless you specifically request and pay for this service. Upon request by Customer ScaleEngine Inc. may, at its option, provide Customer with technical and non-technical support. This means that you may request support, and that we may provide support of our own volition, but no part of the VSN or CDN service includes support. You may not use third parties to request support from us; third party support requests will result in the termination of your service. Excessive support requests, including but not limited to repeated telephone calls and emails will result in the termination of your service. ScaleEngine Inc. does not control end user access to networks, and cannot control this access, nor can it warrant that any end user connection to any ScaleEngine Inc. edge or origin will be fit for any purpose for any length of time. Your use of the VSN service indicates your explicit acknowledgement and acceptance of this inherent risk in using our service.
- Storage Limitations: You acknowledge and agree that ScaleEngine Inc. may, at its option, reclassify or recategorize any User Content and establish limits concerning User Content, including, without limitation, the maximum number of days that User Content will remain available, the maximum size of any files that may be stored on or uploaded and the maximum disk space that may be allotted to you for the storage of User Content on ScaleEngine Inc. servers. ScaleEngine Inc. will have no responsibility or liability for maintaining copies of User Content on our servers, and you are solely responsible for creating back-ups of your User Content.
- We will gratefully receive defect reports related to our software or documentation. Though we certainly intend to fix all reported bugs, we do not guarantee to do so. The software and documentation for ScaleEngine Inc. are offered AS IS and WITHOUT ANY WARRANTY express or implied, including but not limited to warranty of design, merchantability, or fitness for a particular purpose. In no event shall we be liable for any incidental, indirect, special, or consequential damages resulting from your use of or inability to use the software or documentation, even if we or our representative have been advised of the possibility of such damages. In no event will our total liability to you for all damages, losses, and causes of action, whether in contract, tort (including negligence), or otherwise, exceed the amount paid by you for the software, exclusive of handling charges, commissions, and currency conversion fees.
- Termination. Either party may terminate this Contract on 20 days written notice if the other party becomes the subject of any voluntary proceedings under any bankruptcy or insolvency laws, or becomes the subject of any involuntary proceedings under any bankruptcy or insolvency laws which are not dismissed or withdrawn within 60 days after filing. ScaleEngine Inc. may terminate this Contract on 20 days written notice if the Customer commits a material default. In the event of non-payment, ScaleEngine Inc. in its sole discretion, has the right to immediately terminate the Contract without notice.
- Limitation of Liability. The limit of ScaleEngine Inc.'s liability in contract, tort (including negligence) or by statute or otherwise to customer (or its clients) concerning performance or non-performance in any manner related to this Contract, for any and all claims will not, in the aggregate, exceed the total fees paid by customer to ScaleEngine Inc. under this Contract in the immediately preceding one month from the date the claim arose. In no event will ScaleEngine Inc. be liable for any lost profits, special, indirect, consequential, incidental or punitive damages. Customer acknowledges that this limitation of liability and waiver of damages is a material term of this Contract and that ScaleEngine Inc. would not enter into this Contract in the absence of this waiver.
- Force Majeure. Neither party will be liable for any delay, interruption or failure in the performance of its obligations if caused by acts of God, war, declared or undeclared, fire, flood, storm, slide, earthquake, or other similar event beyond the control of the party affected ("Force Majeure"). If any Force Majeure occurs, the party claiming the Force Majeure will promptly notify the other. The party claiming the Force Majeure will use commercially reasonable efforts to eliminate or remedy the Force Majeure. This section will not apply to excuse a failure to make any payment when due.
- Indemnity. Except to the extent of ScaleEngine Inc.'s gross negligence or willful misconduct, and to the fullest extent permitted by law, Customer hereby agrees to indemnify hold harmless, protect, and defend ScaleEngine Inc. and its agents, employees, representatives and contractors from and against any and all claims, causes of action, liabilities, losses, costs, damages, whether foreseeable or unforeseeable, arising out of or related to any act, omission or neglect of Customer or Customer's agents, employees, representatives and contractors, or arising from or related to Customer's use of or activities on or about the Customer Space or Premises. The provisions of this section shall survive the termination, cancellation or expiration of this Contract.
- Users may not:
- Utilize the Services to send mass unsolicited e-mail to third parties. Provided, however, that Users may use software programs or services provided by ScaleEngine Inc. to send unsolicited commercial e-mail so long as the User ensures that such transmissions comply with all applicable state, federal and international regulations, rules and laws, including, without limitation, the U.S. CAN-SPAM Act of 2003.
- Utilize the Services to be involved in the distribution of tools designed for the aiding of Unsolicited Bulk Email (UBE).
- Utilize the Services in such a way that User becomes documented on a recognized SPAM abuse list or if the User has previously been denied access from another provider due to acceptable use policy violations.
- Utilize the Services in connection with any illegal activity. Without limiting the general application of this rule, Users may not:
- Utilize the Services to copy material from third parties (including text, graphics, music, videos or other copyrightable material) without proper authorization;
- Utilize the Services to misappropriate or infringe the patents, copyrights, trademarks or other intellectual property rights of any third party;
- Utilize the Services to traffic in illegal drugs, illegal gambling, obscene materials or other any products or services that are prohibited under applicable law;
- Utilize the Services to export encryption software to points outside the United States in violation of applicable export control laws; or
- Utilize the Services in any manner that violates applicable state, federal and international law.
- Utilize the Services in connection with any tortious or actionable activity. Without limiting the general application of this rule,
Users may not:
- Utilize the Services to publish or disseminate information that (A) constitutes slander, libel or defamation, (B) publicizes the personal information or likeness of a person without that person's consent or (C) otherwise violates the privacy rights of any person.
- Utilize the Services to threaten persons with bodily harm, to make harassing or abusive statements or messages, or to solicit the performance of acts or services that are illegal under applicable law.
- Utilize the Services in connection with any other disruptive or abusive activity. Without limiting the general application of
this rule, Users may not:
- Utilize the Services to cause denial of service attacks against ScaleEngine Inc. or other network hosts or internet users or to otherwise degrade or impair the operation of ScaleEngine Inc.'s servers and facilities or the servers and facilities of other network hosts or internet users;
- Utilize the Services to offer mail services, mail forwarding capabilities, POP accounts or autoresponders other than for the User's own account;
- Utilize the Services to resell access to CGI scripts installed on ScaleEngine Inc.'s servers;
- Utilize the Services to subvert, or assist others in subverting, the security or integrity of any ScaleEngine Inc. systems, facilities or equipment;
- Utilize the Services to gain unauthorized access to the computer networks of ScaleEngine Inc. or any other person;
- Utilize the Services to provide passwords or access codes to persons not authorized to receive such materials by the operator of the system requiring the password or access code;
- Utilize the Services to (A) forge the signature or other identifying mark or code of any other person, (B) impersonate or assume the identity or any other person, or (C) engage in any other activity (including "spoofing") to attempt to deceive or mislead other persons regarding the true identity of the User (excluding the use of anonymous remailers or internet nicknames);
- Utilize the Services to distribute or post any virus, worm, trojan horse, or computer code intended to disrupt services, destroy data, destroy or damage equipment, or disrupt the operation of the Services;
- Utilize the Services to conduct port scans or other invasive procedures against any server (except any server for which the User is an authorized system administrator);
- Utilize the Services to distribute, advertise or promote software or services that have the primary purpose of encouraging or facilitating unsolicited commercial e-mail or spam;
- Utilize the Services to solicit or collect, or distribute, advertise or promote, e-mail address lists for the purpose of encouraging or facilitating unsolicited commercial e-mail or spam;
- Post messages, run scripts or run software programs that consume excessive CPU time or storage space;
- Utilize the Services in any manner that might subject ScaleEngine Inc. to unfavorable regulatory action, subject ScaleEngine Inc. to any liability for any reason, or adversely affect ScaleEngine Inc.'s public image, reputation or goodwill, including, without limitation, sending or distributing sexually explicit, hateful, vulgar, racially, ethnically or otherwise objectionable materials as determined by ScaleEngine Inc. in its sole discretion; or
- Utilize the Services in any other manner to interrupt or interfere with the internet usage of other persons.
- Disclaimer and Assumption of Risk. Nothwithstanding this Policy, Users of the internet (including the Services) make such use at their own risk, acknowledging that there are known and unanticipated risks associated with internet use, some of which could result in physical, emotional or psychological injury or even death, or damage to individuals, to property, or to third parties. Such risks cannot be eliminated without jeopardizing the essential qualities of use of the internet. These risks include, among other things: credit card theft, identity theft, fraud, solicitation, stalking, invasion of privacy, unwanted receipt of offensive or obscene material, trespass to chattels or denial of service attacks. ScaleEngine Inc. expressly disclaims any obligation to monitor its Customers and other Users with respect to violations of this Policy. ScaleEngine Inc. has no liability or responsibility for the actions of any of its Customers or other Users or any content any User may post on any web site. Users voluntarily engage in the activity of internet use and bear the risks associated with that activity.
- Reporting Non-Copyright Violations. ScaleEngine Inc. encourages Users to report violations of this policy by e-mail to: email@example.com, including in any such report the name of the offending domain (for example, xyz.com), the IP address and the type of abuse (for example, spam, illegal acts, harassment, etc.) in the "subject" field of the e-mail.
- Reporting Copyright Violations. ScaleEngine Inc. complies with the Digital Millennium Copyright Act ("DMCA"). ScaleEngine Inc.
encourages Users to report an alleged copyright infringement involving a user by sending a notice that complies with the
DMCA to the email address of the Designated Agent: firstname.lastname@example.org
- For your complaint to be valid under the DMCA, you must provide the following information when providing notice of the
claimed copyright infringement (for more details on the information required for valid notification, see 17 U.S.C. 512(c)(3).) :
- A physical or electronic signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work claimed to have been infringed;
- Identification of the material that is claimed to be infringing or to be the subject of the infringing activity and that is to be removed or access to which is to be disabled as well as information reasonably sufficient to permit ScaleEngine Inc. to locate the material;
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law;
- 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; and
- You should be aware that, under the DMCA, claimants who make misrepresentations concerning copyright infringement may be liable for damages incurred as a result of the removal or blocking of the material, court costs, and attorneys fees.
- ScaleEngine Inc. has the right to suspend or terminate any Customer pursuant to any valid DMCA complaint. Furthermore, ScaleEngine Inc., in its sole discretion, may suspend or terminate, without notice, any User that ScaleEngine Inc. determines is a repeat copyright infringer.
- For your complaint to be valid under the DMCA, you must provide the following information when providing notice of the claimed copyright infringement (for more details on the information required for valid notification, see 17 U.S.C. 512(c)(3).) :
- Remedies. If ScaleEngine Inc. learns of a violation of this Policy, ScaleEngine Inc. will respond to the applicable Customer and may, in its sole discretion, take any of the following actions, in accordance with the severity and duration of the violation:
- Warning the Customer;
- Suspending the offending Customer from the Services;
- Terminating the offending Customer from the Services;
- Imposing fees or charges on the offending Customer account in accordance with the applicable service contract;
- Removing the offending content; and
- Taking other action in accordance with this Policy, the applicable service contract or applicable law.
- Reservation of Rights. ScaleEngine Inc. reserves the right to involve and cooperate with appropriate legal authorities in investigations of claims of illegal activity involving ScaleEngine Inc.'s Services, Customers and other Users. ScaleEngine Inc. reserves all other rights to respond to violations of this Policy to the extent of applicable law and in accordance with any applicable contractual obligations. ScaleEngine Inc. may utilize technical means to monitor communications into, and out of, its network facilities to prevent the introduction of viruses or other hostile code, to prevent intrusions and otherwise to enforce this Policy and each Customer agrees that ScaleEngine Inc. is authorized to monitor its communications through it's network for such purposes.
- Indemnification. User(s) will indemnify, defend, and hold harmless ScaleEngine Inc., its affiliates, subsidiaries, officers, agents and employees from any and all claims, damages or lawsuits of any kind (including reasonable attorney fees) arising out of the User's use of the Services and negligent or illegal acts of User(s), its employees or agents, including, but not limited to, claims, damages or lawsuits arising out the use of those services.
Personal identification information
We may collect personally identification information from Users in a variety of ways, including, but not limited to, when Users visit our site, place an order, fill out a form, and in connection with other activities, services, features or resources we make available on our Site. Users may be asked for, as appropriate, name, email address, mailing address, phone number, credit card information. Users may, however, visit our Site anonymously. We will collect personal identification information from Users only if they voluntarily submit such information to us. Users can always refuse to supply personally identification information, except that it may prevent them from engaging in certain Site related activities.
Non-personal identification information
We may collect non-personal identification information about Users whenever they interact with our Site. Non-personal identification information may include the browser name, the type of computer and technical information about Users means of connection to our Site, such as the operating system and the Internet service providers utilized and other similar information.
Web browser cookies
How we use collected information
ScaleEngine collects and uses Users personal information for the following purposes:
- - To personalize user experience
We may use information in the aggregate to understand how our Users as a group use the services and resources provided on our Site.
- - To improve our Site
We continually strive to improve our website offerings based on the information and feedback we receive from you.
- - To improve customer service
Your information helps us to more effectively respond to your customer service requests and support needs.
- - To process transactions
We may use the information Users provide about themselves when placing an order only to provide service to that order. We do not share this information with outside parties except to the extent necessary to provide the service.
- - To send periodic emails
The email address Users provide for order processing, will only be used to send them information and updates pertaining to their order. It may also be used to respond to their inquiries, and/or other requests or questions.
We adopt appropriate data collection, storage and processing practices and security measures to protect against unauthorized access, alteration, disclosure or destruction of your personal information, username, password, transaction information and data stored on our Site.
Sensitive and private data exchange between the Site and its Users happens over a SSL secured communication channel and is encrypted and protected with digital signatures. Our Site is also in compliance with PCI vulnerability standards in order to create as secure of an environment as possible for Users.
Sharing your personal information
We do not sell, trade, or rent Users' personal identification information to others. We may share generic aggregated demographic information not linked to any personal identification information regarding visitors and users with our business partners, trusted affiliates and advertisers for the purposes outlined above.
Third party websites
Users may find advertising or other content on our Site that link to the sites and services of our partners, suppliers, advertisers, sponsors, licensors and other third parties. We do not control the content or links that appear on these sites and are not responsible for the practices employed by websites linked to or from our Site. In addition, these sites or services, including their content and links, may be constantly changing. These sites and services may have their own privacy policies and customer service policies. Browsing and interaction on any other website, including websites which have a link to our Site, is subject to that website's own terms and policies.
Your acceptance of these terms
By using this Site, you signify your acceptance of this policy and terms of service. If you do not agree to this policy, do not use our Site. Your continued use of the Site following the posting of changes to this policy will be deemed your acceptance of those changes.
This document was last updated on December 21, 2012