Influxis Service Agreement
This Service Agreement ("Service Agreement") for Adobe Flash Media Server or Adobe Media Server ("FMS") hosting describes the Influxis FMS hosting services, rules, payment policy and related processes and applicable laws, and is between Advanced Ops Corporation dba Influxis ("Influxis"), a California company located at 28110 Avenue Stanford, Unit D, Valencia, CA 91355 and the user and respective company, if applicable, ("Client") who entered in the Plan Activation form for any of the non-dedicated Influxis Pricing Plans found on the Influxis website. Influxis reserves the right to make changes or updates to this Agreement from time to time by posting such updates to the Agreement on the Influxis website.
Agreement to Rules: By submitting Client information via the Plan Activation form for any FMS hosting services with Influxis, the Client agrees to all rules, regulations, and statements made in this Service Agreement along with their consequences.
Purpose: All services provided by Influxis may be used for lawful purposes only. Transmission or storage of any information, data or material in violation of any United States law, or the law of any other jurisdiction, is prohibited. This includes, but is not limited to: copyrighted material, material legally judged to be threatening or obscene, or material protected by trade secret or other common laws or statutes. Client warrants and represents that all material it provides to Influxis will accord with such rules, and agrees to indemnify, defend and hold harmless Influxis from any action or claim(s) resulting from or associated with the use of the Services, as defined below, which damages Influxis, Client or any other party(ies) in any way.
Description of Hosting Services: Hosting services ("Services") include the hosting of Client's video/audio streams both live and recorded, and FMS-enabled applications, on shared FMS enabled servers.
Payment Policy & Termination: Influxis' current fees for the Services of FMS-enabled application hosting are set forth on the website. Client shall pay Influxis for FMS hosting services at the time of account activation. Client shall pay the applicable recurring monthly, quarterly, or annual fees associated with the selected FMS hosting package(s). Recurring FMS hosting charges will be charged to Client's on-file credit card each pay period on the start-date of the FMS hosting account. These charges shall not change from period to period unless Client should expressly request an upgrade, downgrade, or other alteration to the FMS hosting plan, subject to Influxis retaining the right to adjust prices on any and all services. Price changes will take effect 30 days after being posted on the website. Acceptable methods of payment include MasterCard, Visa, and American Express. Any non-recurring charges incurred by Client will also be charged to Client's on-file credit card, unless otherwise requested by Client; Client will be notified of such charges in advance via email. If valid payment for any recurring and/or non-recurring payments has not been received from Client within 15 days of the initial bill date, Influxis reserves the right to cancel Client's account. If Client's account has been terminated due to non-payment, and Client would like to reactivate the account, all monies that were due upon cancellation, will then be due upon reactivation. Client can cancel an account at any time. However, Client must cancel its account(s) at least 24 hours before the end of the current billing cycle to avoid billing in the next billing period. Cancellations must be sent in writing or emailed to Influxis, or can be initiated and processed through the Influxis account management interface. Influxis reserves the right to terminate any hosting service if the customer breaches this Agreement. Influxis reserves the right to terminate any hosting service at any time in its sole discretion.
Event Quotes: Event quotes must be requested and approved no less than 2 business days prior to the start of your event. Payment must be received no later than 3:00 PM Pacific Time on the last business day prior to your event. Business days are Monday through Friday, excluding U.S. Holidays, including but not limited to, Thanksgiving, Christmas Day, New Years Eve, and New Years Day. We cannot guarantee configuration of events requested less than 2 business days in advance. A $50 rush fee will be charged for any events configured without advanced notice.
Regulation of Certain Content: Client accepts that it is the Client's responsibility to prescreen and editorially control the content of Client's website, if any, and any audio and/or video stream(s). Influxis reserves the right to request the removal of information in any audio and/or video stream(s) brought to its attention which it deems, in its sole discretion, to be detrimental to Influxis or any person. Client agrees not to include in its website(s), application(s), and in any audio and/or video stream any technology, information or material which violates or infringes any patent, trademark, copyright, trade secret or any other legal rights of any person, firm or corporation, or which a reasonable person would consider abusive, profane or offensive, which is defamatory or harassing, or which violates or encourages others to violate any applicable law. Influxis reserves the right to refuse service to anyone, in its sole discretion. To protect itself, Influxis may without liability, actively cooperate with and furnish identifying and supporting information to any person likely to be harmed by Client's violation of these provisions and to any law enforcement agency serving a warrant or subpoena on Influxis. Influxis will be the sole arbiter as to what constitutes a violation of this provision. Client agrees to indemnify, defend and hold harmless Influxis from any claim(s) arising out of Client's violation of these provisions.
Excessive Traffic: Influxis does not permit (1) usage of more than 10% of system resources for accounts on shared servers, or (2) applications which in Influxis' view are detrimental to the usage of Influxis services by Influxis' other Clients, or are, in the sole and final judgment of Influxis, detrimental to network or business operations, or (3) applications which exceed the account's designated monthly allowed bandwidth usage. Those accounts that do exceed their specified monthly traffic and bandwidth limits are subject to an extra monthly fee of $0.43 per each gigabyte of bandwidth transfer and $0.025 per each megabyte of disk space exceeding their monthly limits and/or restrictions placed on their account by Influxis, at the sole discretion of Influxis. File download and system resource restrictions do not apply to dedicated servers. Client will be notified via email of any excessive bandwidth and/or disk space usage and the related fees incurred during the current calendar month and Influxis will charge these fees to Client's on-file credit card, unless otherwise specified by Client. Upon receiving notification of excessive usage, Client may upgrade the account to cover the additional usage, and Influxis will reevaluate the excess fees, based on Client's new account settings.
Warranties: Influxis makes no warranties of any kind, whether expressed or implied, for the service it is providing. Influxis also disclaims any warranty, express or implied, of merchantability or fitness for a particular purpose. Influxis will not be responsible for any damage suffered. This includes loss of data resulting from delays, non deliveries, mis-deliveries, or service interruptions caused by Influxis' negligence or the subscriber's errors or omissions. Use of any information obtained via Influxis is at your own risk. Influxis specifically denies any responsibility for the accuracy or quality of information obtained through its services.
Maintenance: You hereby acknowledge and agree that Influxis reserves the right to temporarily suspend services for the purposes of maintaining, repairing, or upgrading its systems and network. Influxis will use best efforts to notify you of pending maintenance however Influxis is at no time under any obligation to inform you of such maintenance.
Termination of Service: Services will be suspended or terminated 15 days after the payment due date if Client fails to pay any amount when due. The contents may be deleted and will require then-current encoding and upload charges to reinstate the material. Influxis reserves the right to terminate any customer and any and all services for any reason. A waiver of or failure to enforce this or any other provision by Influxis does not constitute a continuing waiver or a waiver of any other of Influxis' rights at law or in equity.
Upgrading or Downgrading Services: Influxis services may be upgraded or downgraded at anytime via e-mail or via the Influxis account management interface; a pro-rate will be charged for any upgrade made before the end of Client's current billing cycle, and the new plan price will take effect beginning on the next billing date. All charges incurred prior to the next billing date will be billed at the current service plan rates. If a downgrade of services takes place before the end of Client's current billing cycle, there will be no refund available for monthly billing; the difference in plan prices will be forfeited by Client. Refunds for service downgrades will only apply if Client has quarterly, bi-annual or annual billing, then the refund will be for the difference in the plan prices, minus the days used in the current billing cycle. No refund will be processed unless specifically requested by Client, within 15 days of initial downgrade.
Force Majeure: Influxis is excused from, and will not be liable for, any failure or delay in performance of responsibilities otherwise imposed by this Agreement including, but not limited to, any delay, outages or interruptions of the Services, for any cause beyond its reasonable control. Such causes shall include without limitation fires, floods, storms, earthquakes, civil disturbances, acts of God, acts of terrorism, disruption of telecommunications, transportation, utilities or necessary supplies, governmental action, computer viruses and incompatible or defective equipment, software or services not supplied by Influxis, or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).
Confidentiality and Trade Secrets: (a) Confidentiality: Each party hereby acknowledges that it may be exposed to confidential and proprietary information belonging to the other party or relating to its affairs, including without limitation technical information and development techniques, business and financial information, visitor and/or customer lists and other information designated by a party as confidential or proprietary. Confidential Information does not include (i) information already known or independently developed by the recipient; (ii) information in the public domain through no wrongful act of the party, or (iii) information received by a party from a third party who was free to disclose it. Each party agrees that during the term of this Agreement and at all times thereafter it shall not use, commercialize or disclose the other party's Confidential Information except in performing its obligations under this Agreement. Each party shall use the same degree of care in safeguarding the other party's Confidential Information as it uses in safeguarding its own Confidential Information, but in no event shall it use less than due diligence and care. Neither party shall alter or remove from any Confidential Information of the other party any proprietary, copyright, trademark or trade secret legend. (b) Trade Secrets: Influxis represents that its hardware and software configurations are trade secrets. Client shall not access internal components of hardware; source codes or object codes of software or any other internal hardware or software configurations by either direct means or by means of any process of reverse engineering. Client agrees that by failing to comply with this provision, Influxis will be irreparably damaged, and therefore Client shall be assessed liquidated damages of not less than $10,000.00, in addition to any other damages incurred. By assessing liquidated damages Influxis does not waive its right to use any other legal remedy available to it.
Injunctive Relief: The parties acknowledge that violation by one party of any or all of the provisions of the Confidentiality and Trade Secrets clause, above, would cause irreparable harm to the other party not adequately compensable by monetary damages. In addition to other relief, it is agreed that temporary and permanent injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.
Limitation of Liabilities: The following provisions are material conditions of this Agreement and reflect a fair allocation of risk: (a) Remedies. Client agrees that if Influxis violates any warranty or other provision of this Agreement and Influxis in its sole discretion determines that repair or other corrective action is not economically or technically feasible, Client's sole and exclusive remedy will be to seek a refund of up to the amount paid by Client to Influxis for services rendered hereunder during the previous one (1) month. (b) Liabilities. INFLUXIS IS NOT LIABLE FOR ANY AMOUNT EXCEEDING THE PRICE PAID BY CLIENT FOR SERVICES HEREUNDER DURING THE ONE (1) MONTH PRECEDING THE EVENT GIVING RISE TO ANY CLAIM. IN NO EVENT SHALL INFLUXIS BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFIT, LOST DATA, BUSINESS INTERRUPTION OR ATTORNEYS FEES) EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY.
Jurisdiction and Venue Clause: The parties to this Contract agree that any dispute which may arise with respect to this Contract, without the limitation, will be resolved pursuant to the law of the State of California, The forum for venue for the judicial or alternate dispute resolution of such dispute shall be proper only within the County of Los Angeles, California. The parties hereto consent to the jurisdiction of the courts of the State of California for purposes of enforcing the arbitration provision and proceedings and further consent that any process of notice of motion or other application to the Court or the judge thereof may be served upon the parties by certified or registered mail, return receipt requested.
Disputes: Except actions for certain injunctive relief authorized which may be brought in a court of competent jurisdiction at any time, the parties agree that all disputes shall be submitted to a single arbitrator for binding arbitration under proceedings conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award of the arbitrator shall be limited to remedies otherwise available in court and shall include a written explanation of the decision.
Arbitration Clause: The parties to this Contract agree that any and all disputes, claims and controversies between them arising out of, under, or relating to, this Contract, or any resulting transaction will be resolved by neutral binding arbitration with the American Arbitration Association with each side initially paying the cost of such proceeding equally. If the parties cannot agree on an arbitrator, each shall select one from the American Arbitration Association's list of active arbitrators in Los Angeles, and the two selected arbitrators shall choose a third arbitrator from the American Arbitration Association's list of active arbitrators in Los Angeles, which chosen arbitrator will be the arbitrator of the dispute. The parties will have the right to discovery in accordance with California Code of Civil Procedure section 1283.05. In all other respects, the arbitration will be conducted in accordance with Title 9 of Part III of the California Code of Civil Procedure. The arbitrator may award any form of remedy or relief (including specific performance or other injunctive relief) that would otherwise be available in court. The prevailing party shall be entitled to recover the costs of the arbitration and attorney's fees. This agreement to arbitrate includes all claims, including, but not limited to, any claims for breach of contract, breach of fiduciary duty, and fraud. The parties to this Contract expressly waive their right to have their matter resolved by a jury and/or sitting judge, except as otherwise set forth herein. The award rendered by the arbitrator shall be conclusive and binding on the parties hereto, and judgment on the award of the arbitrator may be entered in any court having competent jurisdiction. The arbitrator shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error. Interpretation of this agreement to arbitrate shall be governed by the rules of the American Arbitration Association. YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL, EXCEPT AS OTHERWISE SET FORTH HEREIN.
Export Regulations: The transfer of technology across national boundaries is regulated by the US Government. Client agrees not to export or re-export (including by way of electronic transmission) any data or technology derived from its audio and/or video stream without first obtaining any required export license or governmental approval. Client shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by US regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the US Department of Commerce. This provision and the assurances made herein shall survive termination of this Agreement.
Cancellation of Service by Client: Client shall have the right to terminate service unless an Influxis Written Agreement specifies otherwise. Prior to cancellation of service, Client is responsible for removing their materials from their allotted space on Influxis' servers. Influxis will not be responsible for storage and preservation of Client's materials at any time. Influxis reserves the right to immediately collect up to the total amount of any charges associated with the account that have not been satisfactorily paid by charging the Client's Credit Card on file.
Effective Date of Cancellation: Upon receipt of written notice from Client, followed by written acknowledgement from Influxis to cancel the service, the Effective Date of Cancellation shall be the end of the current billing cycle for all Influxis accounts. No refunds will be made for the current month of the billing cycle, however, if on a quarterly or annual billing cycle, Client will be eligible for a refund for any remaining months of the billing cycle, minus any applied discounts for quarterly or annual billing. No refund will be issued unless specifically requested by Client, within 15 days of the Effective Date of Cancellation. All monies due, including but not limited to, monies for bandwidth, server disk space, application hosting, development, consulting and all other services offered by Influxis are due upon cancellation of service.
Notices: All notices given hereunder must be in writing and transmitted by E-mail, Fax, U.S. Mail, return receipt requested, or special courier service (Fed Ex, UPS, etc.). Notice information shall be sent to Influxis, 28110 Avenue Stanford, Unit D, Valencia, CA 91355.
Miscellaneous: This is the entire Agreement between the parties. This Service Agreement supersedes all previous representations, understandings or agreements and shall prevail notwithstanding any variance with terms and conditions of any order submitted. This Agreement may be modified or amended only by a writing signed by the party against whom enforcement is sought. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Headings are for reference purposes only and have no substantive effect. Each party is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Use of Influxis' services constitutes acceptance of this Agreement. All other terms shall be negotiated in good faith.
© Influxis 2013