MediaSilo General Terms of Service
By accepting the terms of this Service Level Agreement (“Agreement”) the Customer agrees with Media Silo Inc. (“MediaSilo”) as follows:
- Term: This Agreement shall begin on the Service Start Date continue for the Service Term (the “Term”) specified by Customer in the order being placed at the time that this Agreement is accepted by Customer (the “Order”). Thereafter the Term shall automatically extend on a month-to-month basis unless either Party has delivered written notice of its intent to terminate the Agreement at least thirty (30) days prior to the expiration of the initial term or any extension.
- Services: This Agreement applies to the services the specified in the Order and any new features or tools that are added at a later date and made available to Customer (collectively, the “Services”). By utilizing the Services, Customer agrees that its content (not including its credit card information), may be transferred unencrypted over various networks; and undergo changes to conform and adapt to technical requirements of connecting networks and devices. Customer further acknowledges that MediaSilo may modify the Services and add or delete features, functions and Services from time to time in its sole discretion.
- Payment Terms: MediaSilo will charge the credit card of the customer Customer monthly in advance for the Start-Up Fee and the first month’s MSC. In the event MediaSilo is unable to collect any charges made to Customer’s credit card, MediaSilo will notify Customer and attempt to charge the card again in 72 hours. If Customer’s credit card is invalid again, MediaSilo will notify Customer once again, and Customer will have an additional 72 hours to provide MediaSilo with a new credit card. If the replacement credit card is invalid, the Service may be cancelled. Thereafter, unless payment is made in full within thirty (30) days, including a restart fee, MediaSilo may permanently delete all the files that Customer has uploaded using the Service with no further responsibility or liability with respect thereto.
- Outage Credits: (a) Customer shall be entitled to a credit for periods of Service outage that affect Services according to the Outage Credit Schedule set forth in Section 4 (b). MediaSilo agrees to undertake immediate action to attempt to correct any Service outage after receiving notice from Customer that a Service outage exists. A Service outage begins when the Customer opens a trouble ticket with MediaSilo’s support staff by contacting MediaSilo’s support staff by telephone 800.598.6241 or or by logging on to your account management console (http:// manage.mediasilo.com). (b) MediaSilo does not warrant that the service will be uninterrupted, timely, secure, or error-free. However, in the event of service interruption caused by MediaSilo, MediaSilo will provide one day of Outage Credit for each day of service lost. (c) Notwithstanding the foregoing, Customer shall not receive any credit for a Service Outage or inadequate performance of Services arising from or caused by the following events: (i) Customer’s negligence or the negligence of end-users or others affiliated with Customer; (ii) Failure of electrical power to Customer equipment; (iii) Customer rejection of a MediaSilo request to release the Service for testing and repair; (iv) MediaSilo’s inability, due to the action or inaction of Customer or an end-user, to obtain access required to remedy a defect in Service; (v) Scheduled system maintenance coordinated with Customer and performed by MediaSilo within the specified time period; or (vi) malfunction or unavailability of non-MediaSilo equipment or systems; provided, that MediaSilo shall use commercially reasonable efforts to pass through, and provide to Customer, any available and directly applicable credits received from third parties in connection with Service outages arising from third-party failure of equipment or systems. (e) If Customer experiences Service Outages for more than seventy two (72) cumulative hours during any six (6) month period, or if there are three (3) or more Service Outages within thirty (30) days, Customer may terminate the affected Service, without incurring any liability for payment of the early termination fee which would otherwise be payable pursuant to this Agreement, upon written notice to MediaSilo. For purposes of this Section, multiple outage events in a single twenty four (24) hour period shall constitute a single outage. (d) The remedies provided in this Service Level Agreement are Customer’s sole and exclusive remedy for service interruptions.
- Taxes and Fees: Customer shall be responsible for any applicable federal, state or local use, excise, sales or other taxes, fees, assessments, including without limitation universal service assessments or similar amounts in connection with any service furnished to Customer. Customer shall pay all taxes directly to the taxing authority unless the taxing authority requires that MediaSilo collect and remit payment, in which event MediaSilo may charge Customer’s credit card for such amounts and remit them to the authority. If applicable, MediaSilo will exempt Customer in accordance with law, effective on the date MediaSilo receives a valid exemption certificate from Customer.
- Termination Rights: (a) Either party may terminate this Agreement for Cause. “Cause” means a breach by the other party of any material provision of this Agreement, provided that written notice of the breach has been given to the breaching party, and the breach has not been cured within thirty (30) days after delivery of the breach notice. (b) MediaSilo may discontinue service and/or terminate this Agreement immediately upon notice to Customer if Customer provides false information to MediaSilo regarding the Customer’s identity, creditworthiness or planned use of the Services. MediaSilo may discontinue service immediately, without notice, if interruption of service is necessary to prevent or protect against fraud or infringement of third-party intellectual property rights or rights of privacy or publicity or to protect MediaSilo’s personnel, facilities or services.
- Early Service Termination: Customer may cancel the Order prior to the Effective Date, but Customer shall be obligated to pay the Start-up Fee to MediaSilo. If Customer has ordered Services for a 12-month Term or longer, and (a) Customer terminates this Agreement or the Order during the Term for reasons other than Cause, or (b) MediaSilo terminates this Agreement or the Order for Cause, then Customer will pay MediaSilo, within thirty (30) days after such termination, (i) all past due but unpaid charges and interest incurred through the date of termination, plus (ii) the sum of: (A) one hundred percent (100%) of any unpaid MSC that would have been incurred for the ordered Service for months 1-12 of the Term, plus (B) eighty percent (80%) of any unpaid MSC that would have been incurred for the ordered Service for months 13-–24 of the ordered Term; plus (C) any disconnection, early cancellation or termination charges incurred and paid to third parties by MediaSilo on account of Customer; plus (D) any additional amount specifically set forth in the Order. The parties agree that the precise damages resulting from an early termination by Customer are difficult to ascertain, and the early termination fees are a reasonable estimate of anticipated actual damages and not a penalty. MediaSilo may collect the payments required hereunder by charging Customer’s credit card. MediaSilo may terminate the Services at any time, in which case MediSilo’s sole responsibility shall be to refund any fees collected for Services not yet provided and to permit Customer to retrieve its files for five (5) days after MediaSilo provides notice of termination to Customer.
- Limitation of Liability: MediaSilo’s total liability to Customer in connection with this Agreement for any and all causes of action and claims, including without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentation and other torts, shall be limited to the lesser of: (a) proven direct damages or (b) the aggregate amount of payments made by Customer to MediaSilo for the Service during the twelve (12) month period immediately preceding the month in which the circumstances giving rise to the claim occurred.
- Indemnification: Customer shall indemnify, defend and hold harmless MediaSilo and its affiliates, employees, directors, officers, representatives, subcontractors, interconnection service providers, suppliers and agents (“Indemnified Parties”) from and against all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses, including, without limitation, interest, penalties and reasonable attorneys’ fees and disbursements (collectively, “Claims”), to the extent any such Claim is asserted by a third party against any Indemnified Party, directly or indirectly, by reason of or resulting from any Customer failure to perform an obligation under this Agreement or any action or inaction of Customer or its employees or agents that is illegal or constitutes negligence or intentional misconduct, or as a result of: (a) claims for libel, slander, infringement of copyright or unauthorized use of trademark, logo, trade name or service mark arising out of use of any service; (b) claims for patent or copyright infringement arising from using MediaSilo’s Services; (c) claims for damage to property and/or personal injuries (including death) arising out of the negligence or willful act or omission of Customer; and (d) claims that the content or the actions of Customer violate any law or regulation.
- Disclaimer of Warranties: EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, MEDIASILO MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MEDIASILO SERVICES, SOFTWARE OR DOCUMENTATION. MEDIASILO SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Disclaimer of Certain Damages: NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS OR GOODWILL, ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
- Force Majeure: Neither Party shall be liable, nor shall any credit or other remedy be extended, for any failure to fulfill obligations under this Agreement due to causes beyond a Party’s reasonable control, including but not limited to: acts of God, flood, extreme weather, fire or other natural calamity, terrorist attack, any law, order regulation or action of any governmental entity or civil or military authority, power or utility failures, fiber or cable cuts, service outages by third party providers unaffiliated with MediaSilo, national emergencies, riots, wars, strikes, lock-outs work stoppages or other labor difficulties.
- No Joint Undertaking: MediaSilo and Customer are independent parties and shall not be deemed or construed, by virtue of this Agreement, to be the employee, representative, partner, or joint venturer of the other.
- Confidentiality: Commencing on the Effective Date and continuing until the date which is three (3) years after the termination of this Agreement, each Party shall protect as confidential and shall not disclose to any third party, any confidential or proprietary information (“Confidential Information”) received from the disclosing Party or otherwise discovered or received by the receiving Party during the term of this Agreement. Confidential Information shall include any documents or material marked Confidential, and shall additionally include but not be limited to the pricing and terms of this Agreement, and any information relating to the disclosing Party’s technology, business affairs, and marketing or sales plans. The Parties shall use Confidential Information only for the purpose of this Agreement.
- Service Marks, Trademarks and Publicity: Neither MediaSilo nor Customer shall: (a) use any service mark or trademark of the other Party; or (b) refer to the other party in connection with any advertising, promotion, press release or publication unless it obtains the other Party’s prior written approval.
- Removal of Content. MediaSilo may, but has no obligation to, remove files containing content that, in our reasonable opinion, are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violate any party's intellectual property rights or rights of privacy or publicity.
- Intellectual Property Rights. MediaSilo claims no ownership rights with respect to the material you upload using our Service. However, by uploading digital assets and item descriptions, you grant MediSilo a license to permit internet users to view them (subject to any password protection that you employ using the facilities of the Service) and to display and store them and to review them for compliance with these terms. Customer is responsible for keeping its password secure. MediaSilo cannot be liable for any loss or damage from Customer’s failure to maintain the security of its account and password.
- Assignment: Customer may not assign this Agreement without the express prior written permission of MediaSilo, provided that consent shall not be unreasonably withheld. MediaSilo may assign this Agreement in whole or in part to any successor or affiliate upon written notice to Customer.
- Governing Law: This Agreement shall be governed by the laws of the State of Massachusetts without regard to its choice of law principles.
- Notices: All notices (including copies of any Customer notices of disconnect provided as set forth in Section 8), requests, or other communications (excluding invoices) shall be in writing and either transmitted via overnight courier, electronic mail, hand delivery or certified or registered mail, postage prepaid and return receipt requested to the Parties at the following addresses: Notices will be deemed to have been given when received. CUSTOMER: To address provided in the Order. MediaSilo: 207 South Street, Boston MA 02111
- Entire Agreement; Modification of Terms and Services: This Agreement, including the Order, constitutes the entire agreement of the Parties, and supersedes any written or oral prior agreements or understandings relating to the subject matter of this Agreement. MediaSilo may modify these terms, including its pricing (other than prices that apply during the initial Term of an Agreement) from time to time by posting the changes to the MediaSilo Site (www.mediasilo.com). Customer is advised to review these terms from time to time on the MediaSilo Site. Any modification will be binding upon Customer, provided that if MediaSilo makes any changes to these terms which affect Customer in a material and adverse manner, Customer, as its sole remedy, may discontinue the Service without liability by providing MediaSilo with written notice of discontinuance within sixty (60) days of such change.
- Third-Party Apps. If Customer utilizes the Services by means of third-party applications, MediaSilo shall not be responsible for service outages or data loss arising as a result of those third-party apps even if the app is purchased from or through MediaSilo. Customer shall look only to the publisher of the app for recourse for data loss or lost service time caused by such apps.