StreamCanada Terms and Conditions of Service

Section 1.

Purpose of Site. StreamCanada, hosts business and personal streaming media and related components to be used to supplement the user's ("Customer's") web site. StreamCanada’s services include, but are not limited to: the conversion of Customer's multimedia materials into a streaming video or audio format ("streaming media"), the hosting of Customer's streaming media and related components on StreamCanada’s servers (that portion of the server allocate for Customer's use is hereafter referred to as "Customer's Allotted Space") and the granting of permission to link Customer's web site to Customer's Allotted Space. StreamCanada may provide any other services, as necessary, for the operation of its business.

Section 2.

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, unless a written StreamCanada agreement accompanies these Terms and Conditions, and if so, the term of this Agreement shall be as specified in the written “StreamCanada Agreement.” For purposes of this Agreement, the "Effective Date" shall be the date on which Customer submits order for service.

Section 2(a).

StreamCanada Agreement. For large -level accounts (i.e.: not found on StreamCanada’s Web site), or for special services, or customized solutions, a written StreamCanada Agreement may accompany these Terms and Conditions. If such document accompanies these Terms and Conditions, the terms of the StreamCanada Agreement shall override any inconsistencies or contradictory Terms and Conditions that may arise between the two documents.

Section 3.

Encoding - Conversion of Customer's Media. StreamCanada, upon Customer's request and subject to all payment requirements and any other conditions described herein, shall convert, through its own efforts and those of its sub-contractors, Customer's multimedia materials into a streaming video and/or audio format. Customer shall provide StreamCanada with a copy of the materials to be converted in the format as specified on the Customer's quote submitted to StreamCanada. Customer should not provide StreamCanada with the original of the materials to be converted and, in no instance, shall StreamCanada be liable to Customer for direct damages for loss of, or other damage to, Customer's materials greater than the cost of the medium on which the materials were transmitted to StreamCanada.  Customers utilizing this service shall be bound by the terms and conditions of both the Encoding Agreement and this Agreement. Customer shall retain all rights, including all trademark, licensing and copyright rights, in both the original multimedia materials as well as the streaming media materials.

Section 4.

Streaming - Space Support and Maintenance. StreamCanada agrees, subject to the terms of this Agreement, to allow Customer to use and occupy customer's allotted space on StreamCanada’s servers. Subject to the terms of this Agreement, StreamCanada agrees to provide Customer with those support services necessary to allow third persons to access and view Customer's media on Customer's Allotted Space as per the terms of this Agreement. StreamCanada.com does not provide support for offsite or onsite backup or archiving services of customers content.

Section 5.

Linking Services. StreamCanada shall provide Customer with all necessary information to construct, and maintain, a hyperlink from Customer's web site to Customer's Allotted Space on StreamCanada’s server. StreamCanada shall use all reasonable commercial efforts to make Customer's Allotted Space available for viewing by third parties 24 hours each day, seven days per week. Customer shall have the responsibility to notify StreamCanada if Customer's hyperlink to StreamCanada’s service is inoperable.

Section 6.

Price and Payment. Customer shall pay StreamCanada monthly recurring fees, in the amounts indicated current pricing or, if a written StreamCanada 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 page address, or as a written StreamCanada agreement for set-up of the Space. Set-up fee, if applicable, plus first month monthly charges are due before service begins for Customers. StreamCanada reserves the right to increase prices upon the expiration of the Customer's contracted term. Price increases shall be posted on StreamCanada’s web site 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 cancelled 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 of invoice.

Section 6(a).

Method of Payment. StreamCanada accepts payment by Cheque, Bank Transfer, Postal Money Order, or Credit Card. All funds shall be in Canadian or U.S. Dollars, as specified. Currency used by StreamCanada in quotations and discussions will be stated in the currency of the country of the customer.

StreamCanada charges $35(CDN)/$20(US) for each cheque returned (rejected) by the bank. StreamCanada accepts Visa credit cards.

Section 6(b).

Late Payment. Customer Balances (Amounts) past due by 30 days are subject to StreamCanada’s late payment fee, which is 5% of the standard monthly rate for that package. Amounts past due by 60 days are subject to immediate closure without notice. StreamCanada will make reasonable efforts to notify Customer, in advance, of pending closure due to non-payment. StreamCanada will make reasonable efforts to preserve the content off-line, following account closure, for 30 days. If content is not claimed, StreamCanada reserves the right to destroy the content on StreamCanada’s system to make space for new accounts. StreamCanada charges a $35(CDN)/$20(US) Service Fee for each check returned (rejected) by the bank.

Section 6(c).

Collection Agency. Customer Balances (Amounts) past due by 60 days are subject to submission to StreamCanada’s Collection Agency, which shall operate in compliance with Canadian Federal, Provincial and Local laws and Regulations. Customer Accounts will incur a Collections Service Fee of $75(CDN)/$50(US), which is in addition to the Late Payment Fee described in Section 6(b), to reimburse StreamCanada for the cost in Collections Service. Customer may also incur additional further collection procedures.

Section 7.

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

Section 7(a).

Music License Fees. Customer shall be responsible for insuring that Customer’s content will comply with all applicable licensing requirements by federal, provincial, state, local, regulated and contractual music licensing fees, including, without limitation, all BMI, ASCAP, and SESAC licensing requirements and fees, as well as all requirements and fees of the Digital Millennium Copyright Act of 1998.

Section 8.

Acceptable Use. This Agreement is designed to help protect StreamCanada’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, StreamCanada reserves the right to terminate the service without notice. StreamCanada shall make reasonable efforts to advise Customer of the inappropriate behaviour and offer any corrective action necessary. StreamCanada reserves the right to immediately terminate its service to Customer for any flagrant or repeat violations of this Agreement. Incidents that may cause the account to be terminated include, but are not limited to:

• a) Harassment: using the service to threaten or harass.
• b) Using the service for any purpose other than which it is intended.
• c) Attempting to impersonate any person, using forged headers or other identifying information in a defamatory way.
• d) Violation of Trademark and/or Copyrighted material. Upon receipt of a legal notice to "Cease" hosting of material, StreamCanada will remove all related material until Customer has satisfactorily resolved the dispute.
• e) Uploading any programs that may cause a disruption to the service.
• f) Untimely payment of any and all amounts due.
• g) Any action that violates the laws of applicable local, state, federal or international governmental bodies.
• h) Sharing the account with anyone or re-selling the service.

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

Section 9.

Live Events. Customer agrees not to use the service to host "live events" without the express written permission of StreamCanada and, if such consent is given, only pursuant to the terms and conditions designated in the written permission from StreamCanada or as per the StreamCanada Agreement. In the event that Customer uses the service to host "live events" without the express written consent of StreamCanada, StreamCanada reserves the right to remove Customer's materials from StreamCanada’s service, or otherwise block access by third-parties to Customer's materials.

Section 10.

Disk and Bandwidth Utilization. StreamCanada’s website specifies limits on bandwidth and disk utilization. By accepting this Agreement, Customer agrees to be bound by the service description applicable to its account. StreamCanada reserves the right to remove material and/or terminate or suspend the account due to any violation of bandwidth or utilizations limits ("overage") that StreamCanada deems inappropriate or excessive. Repeat violations of the allotted disk and/or bandwidth utilization may subject account to termination. Customer agrees to pay for all bandwidth and/or disk usage that exceeds their allotment based on the current charges depicted on this site (and no less than one cent per megabyte in data traffic and one dollar per megabyte in disk storage). StreamCanada is not responsible to notify Customer of overages and it is the Customer's responsibility to ascertain these conditions. StreamCanada will make reasonable efforts to keep client informed of overages exceeding Customer's allotment by 200% or more but can not guarantee such notification. StreamCanada advises that Customer anticipate the volume of users likely to view their media file in a given month and multiply that by the size of the file to approximate bandwidth usage per month.

Section 11.

Security of Data. StreamCanada makes no guarantee and assumes no liability for the security of any data on any server including "secure servers." Customer agrees to maintain separate backups of any data other than the backup systems that StreamCanada has in place and StreamCanada shall not be liable for the loss, or modification, of any Customer materials due to any breach of security, network or hardware failure.

Section 12.

Real Networks. Customer purchasing accounts that use Real Networks' Streams are using Streams subject to the Real Networks Licensing Agreement and agree to be bound by Real Networks Stream License Agreement. StreamCanada shall not be liable for any violation of the Real Networks Stream Licensing Agreement by Customer and Customer shall indemnify StreamCanada, including all legal fees and other costs, if any court of competent jurisdiction shall hold StreamCanada liable for Customer’s violation of the Licensing Agreement. As StreamCanada continuously upgrades our services with Real Networks, their terms and conditions of their License Agreement are subject to change without notice.

Section 12-B.

Windows Media. Customer purchasing accounts that use Windows Media are using Streams subject to Microsoft's Licensing Agreement and agree to be bound by Microsoft's Stream License Agreement. StreamCanada shall not be liable for any violation of the Microsoft Windows Media Stream Licensing Agreement by Customer and Customer shall indemnify StreamCanada, including all legal fees and other costs, if any court of competent jurisdiction shall hold StreamCanada liable for Customer’s violation of the Licensing Agreement. As StreamCanada continuously upgrades our services with Microsoft, their terms and conditions of their License Agreement are subject to change without notice.

Section 13.

QuickTime. Customer purchasing accounts that use QuickTime Streams are using Streams subject to Apple’s Public Source License Agreement (Darwin 3.0) and agree to be bound by Apple’s Public Source License Agreement as well as subsequent revisions that Apple Computer, Inc., may implement. StreamCanada shall not be liable for any violation of Apple’s Public Source License Agreement by Customer and Customer shall indemnify StreamCanada, including all legal fees and other costs, if any court of competent jurisdiction shall hold StreamCanada liable for Customer’s violation of the Licensing Agreement. As StreamCanada continuously upgrades our services with Apple Computer, Inc., their terms and conditions of their License Agreement are subject to change without notice.

Section 14.

Continuity of Service. StreamCanada makes every effort to keep its service up and running. However, StreamCanada cannot and will not guarantee 100% uptime of its service. In no event shall StreamCanada be liable for any disruption of service of duration of less than four hours. StreamCanada will reimburse customer, on a daily pro-rated basis upon request, any fees paid to StreamCanada for which service was unavailable for duration of four hours or more in any given day.

Section 15.

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, and Customer does not exceed their allotted disk space and data-traffic. Customers wishing to modify their allotted package disk space and/or data-traffic should submit a request for modification to support@StreamCanada.com  or use Customer’s login and password to request a modification of service online.

Section 16.

Cancellation of Service by StreamCanada. StreamCanada 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, StreamCanada will reimburse client any unused fees (prorated daily), after StreamCanada has determined, in its own discretion, that all charges associated with the account have been satisfactorily paid. Upon request of Customer, StreamCanada shall return all Customer materials. StreamCanada reserves the right to withhold fees, up to the total of any charges associated with the account that have not been satisfactorily paid, if legal action is pending against StreamCanada for the misuse of the account or if StreamCanada reasonably believes legal action may be brought against StreamCanada. Under such conditions, StreamCanada may withhold such fees until it has been determined that any legal action brought against StreamCanada has been satisfactorily resolved and all charges have been satisfactorily paid.

Section 17.

Cancellation of Service by Customer. Customer shall have the right to terminate this Agreement upon thirty (30) days written notice to StreamCanada, unless a written StreamCanada agreement specifies otherwise. StreamCanada shall reimburse client any unused fees (prorated daily), after StreamCanada has determined, in its own discretion, that all charges associated with the account have been satisfactorily paid. Customers who have subscribed to an Annual or Semi-Annual Subscription Package, and who seek to cancel their subscription prior to the expiration of their term, shall have their account recalculated based upon the month-to-month rate and any remaining unused fees will be reimbursed to Customer. Prior to cancellation of service, Customer is responsible for removing their materials from their allotted space on StreamCanada’s servers and StreamCanada will not be responsible for storage and preservation of Customer's materials upon receipt of request for cancellation. StreamCanada reserves the right to withhold fees, up to the total of any charges associated with the account that have not been satisfactorily paid, if legal action is pending against StreamCanada for the misuse of the account or if StreamCanada reasonably believes legal action may be brought against StreamCanada. Under such conditions, StreamCanada may withhold such fees until it has been determined that any legal action brought against StreamCanada has been satisfactorily resolved and all charges have been satisfactorily paid.

Section 18.

No Other Warranties. StreamCanada WARRANTS THAT THE SERVICE WILL OPERATE SUBSTANTIALLY IN CONFORMANCE WITH THE SPECIFICATIONS DEPICTED IN THEIR PACKAGE. TO THE EXTENT PERMITTED BY LAW, STREAMCANADA 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.

Section 19.

Limitation of Liability. UNDER NO CIRCUMSTANCES WILL STREAMCANADA BE LIABLE TO CUSTOMER FOR DIRECT DAMAGES GREATER THAN THE TOTAL OF ONE MONTH'S FEE CHARGED BY STREAMCANADA 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 STREAMCANADA FOR THE SERVICE FOR WHICH DAMAGES ARE CLAIMED. IN NO EVENT SHALL STREAMCANADA 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 STREAMCANADA BE LIABLE TO CUSTOMER FOR ANY MARKETING, ADVERTISING, PROMOTIONAL EXPENSES OR ANY EXPENSES RELATED TO THE CUSTOMER'S USE OF STREAMCANADA’s SERVICE, REGARDLESS OF ANY EVENT, INCLUDING INTERRUPTION OF STREAMCANADA’s SERVICE, OR STREAMCANADA’s REMOVAL OF CUSTOMER'S MATERIAL.

Section 20.

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 StreamCanada’s services.

Section 21.

Governing Law. The laws of the Province of Ontario, Canada shall govern the validity, construction and performance of this Agreement.

Section 22.

Arbitration. The parties agree to submit any dispute arising out of or in connection with this Agreement to binding arbitration in Ontario before an arbitrator agreed to by both parties and subject to the rules of the Canadian arbitration process. 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.

Section 23.

Assignment. Customer may not assign its rights or obligations arising under this Agreement without StreamCanada’s prior written consent. StreamCanada may assign its rights and obligations under this Agreement, but must provide written notice to Customer within 90 days of doing so.

Section 24.

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.

Section 25.

Amendment of Agreement. StreamCanada may amend this Agreement from time to time on an as-needed basis by placing an update of this Agreement on-line at StreamCanada’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 StreamCanada, Customer must immediately cease the use of StreamCanada’s service.

Section 26.

Notices: All legal notices to StreamCanada should be submitted to our head Office.

Section 27.

Copyright. The entire content of StreamCanada’s Service is copyrighted, and all rights are reserved.

Section 28.

Digital Rights Media Service (Pay-Per-View). Customers electing to use StreamCanada’s Digital Rights Media Services are subject to this Section’s Terms and Conditions regarding use of the service.

Section 28(a).

Services. Subject to the terms and conditions of this Digital Rights Media (“DRM”) Service Agreement, including the above “Terms and Conditions” and all Schedules (collectively, the “Agreement”), StreamCanada, (“StreamCanada”) agrees to provide during the Term the services identified in Schedule A (the “Services”) for purposes of making Customer’s (also referred to as “Company’s”) content (the “Content”) available for distribution in protected digital format. During the Term, Company may elect to have StreamCanada perform additional services at fees to be mutually agreed upon in which event the Services shall be deemed to include such additional services and all terms and conditions of this Agreement shall apply thereto.

Section 28(b).

Fees. As compensation for providing the Services, Company agrees to pay StreamCanada, all applicable fees as set forth in Schedule B, including, without limitation, the following transaction fees as specified in Schedule B: Financial Transaction Fee (“FTF”) for each transaction involving the sale of Content for financial remuneration (a “Financial Transaction”). The FTF shall be calculated by multiplying the selling price of the Content by the rate set forth in Schedule B; and An Information Transaction Fee (“ITF”) for each transaction involving no financial remuneration but which may involve the collection of information in return for the distribution of the Content at no charge to consumers (an “Information Transaction”). The ITF and FTF are hereinafter referred to collectively as the “Transaction Processing Fees”.

Section 28(c).

Term. This Agreement shall commence upon the execution hereof by both parties duly authorized representatives and will continue on a month-to-month basis. Either party may cancel this agreement in writing by providing thirty-days written notice.

Section 28(d).

Price of Content. StreamCanada offers the Content to consumers according to the pricing schedule to be provided by Company for the Content (the “Pricing Schedule”), or such other distribution terms as Company may designate in writing.

Section 28(e).

Settlement. StreamCanada will make available to Company in electronic or printed format a monthly invoice detailing (a) all Transaction Processing Fees and any other fees or other amounts due and owing by Company to StreamCanada for the monthly billing period, and (b) if applicable, any revenues collected by StreamCanada on behalf of Company during such period. It is understood that the monthly billing period shall not necessarily be on a calendar month basis but in any event the monthly invoice shall be issued no later than thirty days following the close of the monthly billing period. Settlement (either collection from or remittance to Company) for the invoice amount will occur via check or credit card, initiated by StreamCanada, within twenty business days of, but in no event sooner than three business days after, StreamCanada’s making the invoice available to Company.

Section 28(f).

Consumer Disputes; Bad Debt Charge backs. Company will bear all loss associated with all consumer disputes, bad debt charge backs for consumer payments and/or other consumer fraud which results in payment not being collectible. If applicable, StreamCanada will attempt to resolve all consumer disputes and will process and attempt to collect any and all bad debt charge backs using its normal procedures for such transactions at Company’s sole expense. StreamCanada may hold five percent of sales for 90 days to ensure any and all charge backs have cleared. StreamCanada’s expenses and fees associated with StreamCanada’s processing of and attempt to collect such charge-backs and attempt to resolve consumer disputes are set forth in Schedule B and will be offset against any amounts due and payable to Company.

Section 28(g).

Licenses. It may be necessary, for the purposes of enabling StreamCanada to perform the Services, that StreamCanada have permission to create copies of the work. Solely for purposes of enabling StreamCanada to perform the Services pursuant to this Agreement, Company grants to StreamCanada a nonexclusive, transferable, worldwide, royalty free right and license to copy, perform, promote, transmit and distribute the Content, in the appropriate digital medium necessary to fulfill the purposes of this Agreement. To provide the Service, StreamCanada must delegate some portions of the Service to a third party. StreamCanada may, in its sole discretion, delegate and/or sublicense any or all of the foregoing licenses to any third party for the sole purpose of providing the Services on behalf of StreamCanada pursuant to this Agreement.

Section 28(h).

Reservation of Rights. Nothing in this Agreement shall be construed to grant Company any rights, by license, title or otherwise, to any aspect of StreamCanada’s intellectual property or to the intellectual property of any third party used in connection with distributing the Content under this Agreement. Nothing in this Agreement shall be construed to grant StreamCanada any rights, by license, title or otherwise, to any content of Company other than those rights granted in Section 28(g) for the sole purpose of enabling StreamCanada to perform the Services pursuant to this Agreement.

Section 28(i).

Termination. Either party may terminate this Agreement at any time in the event the other party materially breaches a provision of this Agreement and does not cure the breach within 15 days of receiving notice of the breach. If such function is supported by the digital rights management technology being utilized in connection with a particular piece of Content, following the expiration or earlier termination of this Agreement, consumer access rights to such Content that were obtained during the term of this Agreement shall be maintained for the remainder of the period of such access rights. Such continued access rights are subject to the consumer not being in violation of the license rights to the client software application (if any) used to render the Content. If any Transaction Processing Fees are payable in connection with such continued Content access, Company agrees that StreamCanada may, at its option, either invoice Company for such fees (and which invoice or invoices Company agrees to pay in accordance with the applicable provisions of this Agreement) or deduct such Transaction Processing Fees from any amounts retained by StreamCanada under the provisions of Section 28(b) hereof. The parties expressly agree that all relevant provisions of this Agreement shall survive expiration or termination during the period of continued access rights.

Section 28(j).

Representations and Warranties. Representations and Warranties of Both Parties. Each party hereto represents and warrants to the other party that as of the commencement of the Term: such party is legally authorized to bind the entity, which is validly existing and in good standing under the laws of the jurisdiction in which it is organized, with full legal power and authority to carry on its business as it is now being conducted; the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by such party. No other corporate or shareholder action or other proceeding on the part of such party or its shareholders is necessary to authorize this Agreement and the consummation of the transactions contemplated hereby; this Agreement constitutes a valid and binding obligation of such party enforceable against such party in accordance with its terms, except that such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium, or similar laws now or hereafter in effect relating to creditors' rights; neither the execution, delivery nor performance of this Agreement nor the consummation of the transactions contemplated hereby will violate any provision of the charter or organizational documents of such party; there is no action, suit, claim, proceeding or investigation pending or, to the best of such party's knowledge threatened against or affecting such party, at law or in equity, before any foreign or domestic federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, or arbitration proceeding which would materially affect such party's abilities to enter into this Agreement or to perform its obligations hereunder; the representations and warranties of each party contained herein are true, complete and correct; and the execution and delivery of this Agreement and the performance of each party's obligations hereunder will not violate any provision of any agreement or other instrument to which such party is a party or is otherwise bound.

StreamCanada represents and warrants to Company that to StreamCanada’s knowledge, StreamCanada owns or has all rights, permission and interests necessary to perform the Services, including, without limitation, the right to use and utilize the technology and intellectual property necessary to process the Content transactions; to StreamCanada’s knowledge, the performance of the Services by StreamCanada in accordance with this Agreement shall not infringe upon or otherwise violate any third party's valid United States patent, copyright or other intellectual property right; during the Term, the Services provided by StreamCanada under this Agreement shall be provided: (A) in accordance with applicable Canadian federal law and the laws of such other jurisdictions as may be applicable thereto; and (B) by qualified personnel; and StreamCanada has subcontracted with a third party that operates for the non-exclusive benefit of Company during the Term one or more clearinghouse facilities for the performance of DRM clearinghouse functions. StreamCanada and its agents, third parties, subcontractors, will operate its facilities performing such clearinghouse functions in a manner consistent with information systems industry practices for highly secure, highly available, highly responsive and highly reliable systems as may be established or generally recognized within such industry as standards for such clearinghouses from time to time.

Company represents and warrants to StreamCanada that, as of the commencement of the Term, Company has all rights necessary to grant the license in Section 28(g) above and to enter into this Agreement, including, without limitation, all copyright rights in the Content and all rights of publicity with respect to any authors, artists, artwork, text material, images, sound or video provided by Company to StreamCanada associated with the Content. Company further represents and warrants that the Content is not defamatory, obscene, or otherwise unlawful in any jurisdiction or country in which it is intended to be distributed, and does not infringe or interfere with any intellectual property, contract, right of publicity, or any other proprietary right of any individual or entity.

Limitation. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT TO THE CONTRARY: (i) THE DRM PRODUCTS AND SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. StreamCanada DOES NOT WARRANT THAT THE DRM PRODUCTS AND/OR SERVICES WILL MEET THE REQUIREMENTS OF COMPANY OR THOSE OF ANY THIRD PARTY AND, IN PARTICULAR, StreamCanada DOES NOT WARRANT THAT THE StreamCanada PRODUCTS AND/OR SERVICES WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION.

Survival. The provisions of this Section shall survive the termination or expiration of this Agreement.

Section 28(k).

Indemnification.

(a) StreamCanada: Indemnification. StreamCanada shall indemnify and hold Company and all of its officers, directors, agents, shareholders, representatives, attorneys and employees (the “Company Parties”) harmless from any and all liability, judgments, costs, damages, claims, suits, actions, proceedings, expenses and/or other losses, including reasonable legal fees (collectively, "Claims") or portions thereof, arising out of or resulting from controversies or litigation asserted by any third party against the Company Parties arising directly or indirectly from: (i) StreamCanada’s material breach of any of its obligations under this Agreement, or its representations and warranties set forth herein; and (ii) the failure of any of the representations or warranties made by StreamCanada herein to be true.

(b) Company Indemnification. Company shall indemnify and hold StreamCanada, its designated third parties and licensors of underlying platform technology utilized by StreamCanada in performing the Services and all of their officers, directors, agents, shareholders, representatives, attorneys and employees (the "StreamCanada Parties") harmless from any and all Claims or portions thereof, arising out of or resulting from controversies or litigation asserted by any third party against the StreamCanada Parties arising directly or indirectly from: (i) Company's material breach of any of its obligations, representations or warranties hereunder; (ii) any combination of StreamCanada and its licensors’ technology with any product, technology or service of Company or of any third party where such Claim would have been avoided in the absence of such combination; and (iii) any Content distributed by Company pursuant to the terms of this Agreement.

(c) Third Party Claims. In case any Claim is brought by a third party for which Claim indemnification is or may be provided hereunder, the indemnified party shall provide prompt written notice thereof to the other party. Where obligated to indemnify such Claim, the indemnifying party shall, upon the demand and at the option of the indemnified party, assume the defence thereof (at the expense of the indemnifying party) within 30 days or at least ten days prior to the time a response is due in such case, whichever occurs first, and/or, alternatively upon the demand and at the option of the indemnified party, pay to such party all reasonable costs and expenses, including reasonable attorneys' fees, incurred by such party in defending itself. The parties shall cooperate reasonably with each other in the defence of any Claim, including making available (under seal if desired, and if allowed) all records reasonably necessary to the defence of such Claim, and the indemnified party shall have the right to join and participate actively in the indemnifying party's defence of the Claim. Each party shall be entitled to prior notice of any settlement of any Claim to be entered into by the other party and to reasonable approval of a settlement to the extent such party's rights would be directly and materially impaired. Without limiting the foregoing, in the event of any Claim or threatened Claim of infringement involving a portion of any technology and/or the Services: (i) upon Company's request and at StreamCanada expense, StreamCanada will use its best efforts to procure the right or license for Company to continue to use and otherwise exploit in accordance with the terms hereof such portion of the technology and/or Services on commercially reasonable license terms; or (ii) at StreamCanada’s sole discretion, StreamCanada and its licensors may modify or alter (to the extent that StreamCanada or its licensors has rights to so modify or alter), or delete any such portion of the technology and/or Services, as the case may be, so as to make such portion of the technology and/or Services non-infringing while maintaining substantially comparable functionalities, integrity, capabilities and interoperability of such parts or modules of the technology and/or Services that are material to Company's then-current or demonstrably anticipated use hereunder. If options (i) and (ii) are not achievable as to such portion: (1) Company may terminate the rights and licenses granted hereunder in its sole discretion; or (2) to the extent StreamCanada used reasonable commercial efforts to obtain a license or modify the technology and/or Services as set forth in subsections (i) or (ii), and StreamCanada is reasonably exposed to liability from Company's continued use of such portion of the technology and/or Services, StreamCanada may in its discretion terminate the rights and licenses granted hereunder with respect to such portion.

(d) Survival. The provisions of this Section shall survive the termination or expiration of this Agreement.

Section 28(l).

Potential Liability. StreamCanada reserves the right to refuse to provide Services with respect to any piece of Content if StreamCanada reasonably believes the distribution of such piece of Content exposes Company and/or StreamCanada to potential legal liability in any country. StreamCanada’s decision to refuse to provide Services shall in no way affect Company’s sole responsibility for the Content as addressed in this Agreement.

Section 28(m).

Company Obligations. Company hereby covenants and agrees that all transactions facilitated through the use of StreamCanada and its licensors’ technology in any way will at all times be cleared through StreamCanada and/or its licensors’ facilities providing clearinghouse services. Company further covenants and agrees that any use by Company of StreamCanada and/or its licensors’ trademarks and any changes made to the design or content of any page of a website provided by StreamCanada or its licensors shall be in accordance with guidelines (as same may be updated from time to time) provided by StreamCanada or its licensors.

Section 28(n).

LIMITATION OF LIABILITY. EXCEPT AS SET FORTH IN THE INDEMNIFICATION PROVISIONS HEREOF, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, ITS AGENTS, AFFILIATES, CUSTOMERS, OR ANY OTHER PERSONS, FOR ANY LOST PROFITS OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE BREACH OF THIS AGREEMENT. StreamCanada SHALL NOT BE LIABLE FOR ANY LOSS SUFFERED AS THE RESULT OF A BREACH OF SECURITY, WHETHER SUCH BREACH RESULTS FROM THE DELIBERATE, RECKLESS OR NEGLIGENT ACTS OF ANY THIRD PARTY OR OTHERWISE. IN NO EVENT WILL StreamCanada’s LIABILITY FOR ANY AND ALL CLAIMS, IN THE AGGREGATE, ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OF THE SERVICES (OR ANY RELEVANT TECHNOLOGY) EXCEED THE AMOUNT StreamCanada HAS RECEIVED FROM COMPANY UNDER THIS AGREEMENT DURING THE TERM HEREOF.

UNDER NO CIRCUMSTANCES SHALL StreamCanada BE LIABLE FOR ANY UNAUTHORIZED USE BY COMPANY OF ANY CONTENT OF ANY THIRD PARTY, OR ANY DEVELOPMENT, DISTRIBUTION OR USE OF ANY CONTENT THAT IS DEFAMATORY, SLANDEROUS, LIBELOUS OR OBSCENE, THAT GIVES RISE TO ANY BREACH OF CONTRACT INVOLVING ANY THIRD PARTY OR TO ANY BUSINESS TORT OR SIMILAR CLAIM OF A THIRD PARTY OR ANY VIOLATION OF ANY FOREIGN, FEDERAL, STATE OR LOCAL STATUTE OR REGULATION, OR THAT OTHERWISE CAN BE REASONABLY LIKELY TO EXPOSE StreamCanada OR StreamCanada PARTIES TO CRIMINAL OR CIVIL ACTIONS.

UNDER NO CIRCUMSTANCES SHALL StreamCanada BE LIABLE FOR ANY UNAUTHORIZED USE BY ANY THIRD PARTY THAT COPIES OR CAPTURES COMPANY’S CONTENT BY WAY OF EMPLOYING SUCH DEVICES THAT ENABLE CONTENT TO BE RECORDED DURING PLAYBACK AND ARCHIVED AS AN UNSECURE FILE, AND POSSIBLY REDISTRIBUTED WITHOUT AUTHORIZATION. StreamCanada AND ITS LICENSORS’ TECHNOLOGY HAVE TECHNICAL LIMITATIONS THAT CANNOT PREVENT A USER FROM COPYING THE CONTENT DURING PLAYBACK.

THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.

Section 28(o).

Public Relations. Neither party will issue any press release (other than press releases of either party that contain previously approved “boilerplate” mention of the other party), nor otherwise disclose any information concerning this relationship or the Agreement without the prior written consent of the other. The parties agree that a joint press release regarding the establishment of their relationship is appropriate and that each will dedicate appropriate resources to this effort.

Section 28(p).

General. This Agreement will be binding on and inure to the benefit of the respective successors, assigns, and legal representatives of the parties. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other, except either party may assign its rights or obligations in the event of a sale of all or substantially all of its stock or assets and StreamCanada may assign this Agreement to a wholly-owned subsidiary of StreamCanada. Notwithstanding the foregoing, Company shall not have the right to assign this Agreement to any company that competes with StreamCanada in providing DRM services. This Agreement contains the entire agreement between the parties relating to its subject matter and supersedes all existing agreements between the parties relating thereto. No amendment, change, or modification of this Agreement will be binding on either party unless mutually agreed to by the parties in writing. Failure of a party to enforce any provision of this Agreement will not be a waiver of such provision nor of the right to enforce such provision. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the validity and enforceability of the remaining provisions will not be affected thereby. This Agreement will be governed by and construed in accordance with the laws of the State of New York without giving any effect to the conflict of law provisions thereof, and each party agrees to submit to personal jurisdiction in the federal and state courts located in the State of New York, which shall be the exclusive venue for such action. This Agreement may be executed in one or more counterparts, including facsimile, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

Section 28(q).

Consumer Data. As between Company and StreamCanada, Company shall own consumer data derived from Services provided by StreamCanada hereunder, including but not limited to individual consumer data such as name, address, telephone number, email address, purchasing habits and sales transaction history, provided that StreamCanada shall have, notwithstanding any provisions hereof to the contrary, perpetual, royalty-free rights to use such consumer data in summary, digest, aggregate demographic/geographic or similar forms wherein there is no identification of individual consumers or the Company's content. Both parties acknowledge that ownership and/or use of consumer information shall at all times be in accordance with applicable law, including but not limited to laws relating to consumer information privacy.

Section 28(r).

Audit.

(a) StreamCanada and Company shall each maintain at its principal place of business during the term of this Agreement and for a period of two years thereafter all books, records, accounts, and technical materials regarding its activities in connection herewith sufficient to determine and confirm all amounts payable pursuant hereto and all other material obligations hereunder. Upon a party’s request, the other party will permit one or more representatives of an auditor or agent of the requesting party’s choice to examine and audit, during a reasonable time, such books, records, accounts, documentation and materials, and take extracts there from or make copies thereof for the purpose of verifying the correctness of payments made pursuant hereto and/or compliance with the other material obligations hereunder. Unless otherwise agreed by the parties in writing, such examination shall be in material accordance with generally accepted accounting principles. The audited party shall pay any unpaid delinquent amounts within ten days of the other party’s request. To the extent such examination discloses an underpayment of more than $5,000, the audited party shall fully reimburse the other party, promptly upon demand, for the fees and disbursements due the auditor for such audit; provided that such prompt payment shall not be in lieu of any other remedies or rights available to such other party hereunder. In all other events, all fees and expenses of the auditing party’s auditor or agent under this Section 28(r)a shall be paid by auditing party. If an audit reveals an overpayment, the auditing party shall promptly notify the other and shall pay the amount of any such overpayment to the other party within ten days thereafter.

(b) If any report of an audit under the provisions of Section 28(r)a above discloses to the auditing party any underpayments or overpayments, a copy of such audit report shall be promptly delivered to the audited party. Unless the amount of any underpayment or overpayment shown on such report is disputed by the audited party, in writing (a "Notice of Dispute"), within ten days after receipt of the audit report, the audit report shall be deemed accepted and all amounts due hereunder shall be paid according to the applicable provisions of Sections 28(r) a. In the event that, within 15 days after a Notice of Dispute has been received by the auditing party, Company and StreamCanada have not resolved all disputed items to their mutual satisfaction, they shall promptly submit such audit report and all supporting work papers to an independent accounting firm of national stature in the United States selected by mutual agreement of Company and StreamCanada for binding review of any disputed items. All costs and expenses of such review shall be apportioned between the parties on the basis of each party bearing the expense of that portion of the review that shall be related to disputed items that are resolved against such party. If Company and StreamCanada are unable to agree upon the selection of an independent accounting firm of national stature in the United States to perform the binding review of any disputed items, the determination and selection of the independent accounting firm of national stature shall be settled by arbitration in the City of Seattle, Washington in accordance with the rules and regulations of the American Arbitration Association.

(c) As StreamCanada provides the Service for many clients, it is possible, during an audit, that Company shall obtain or review financial and company information related to another client. Company agrees, should this event occur, that this information is PROPRIETARY and CONFIDENTIAL and shall not disclose such information to any third party without prior written approval of the client of which such data was reviewed. Company acknowledges that its financial information could also be reviewed by a third party during an audit and grants permission to StreamCanada to disclose all financial information, if required, in StreamCanada’s possession or its licensors’ possession for the sole purpose of conducting an audit.

Section 28(s). Taxes. Company is responsible for payment of all sales, use, value-added and other taxes, duties and other charges that may fall due as a result of this Agreement and the Services provided by StreamCanada. StreamCanada is responsible for payment of any income tax imposed upon it based on payments received by StreamCanada hereunder. Sales and any value added taxes that relate to sales or other distributions of Content pursuant to the provisions of this Agreement shall be the sole responsibility of the party that collects the revenues for such sales. Sales tax compliance for sales of Content within the United States as to which StreamCanada or its licensors or delegated third parties, collects the revenue will be supported as provided in Schedule C hereto. The Services provided by StreamCanada and its licensors and delegated third parties do not currently support the calculation or charging of any foreign jurisdiction Value Added Tax for the Content or for the remittance of payment to or filing any returns with any Value Added Tax authority in any jurisdiction. Support for VAT is under development by StreamCanada’s licensors and is anticipated to be incorporated in to future releases of StreamCanada’s service and will be made available to Company upon StreamCanada’s release.

Acceptance of this agreement by duly authorized representative of Company will acknowledge that Company has read, understood and agreed to all of the provisions of this DRM Service Agreement, including the Terms and Conditions, and any Schedules attached hereto.

SCHEDULE A - SERVICES

Order Processing. Order processing system is used to make a request to the StreamCanada’s licensors’ DRM Clearinghouse to issue the appropriate permit required by the consumer to consume the digital content.

Promotion Management. Promotion management enables client to offer promotional downloads (i.e., Information Transactions) from its website.

Digital Rights Warehouse & Tracking. The Digital Rights Warehouse stores all permits that have been created. It also houses all permit classes as well as holds a record of the permits generated from the permit classes.

Offer Management. Digital permits are made available to consumers via offers defined by the client that are then displayed to the consumer as HTML pages.

Digital Rights Issuance. Digital Rights, or permits, are created and issued, allowing the consumer access to protected content.

Client and Consumer Service. Standard levels of client service (at StreamCanada’s premises) are provided at no charge. Standard levels of consumer service are available by e-mail during StreamCanada’s standard consumer support hours at no charge. Additional levels of client and consumer service are at an additional fee.

Client Reporting. Standard reports are provided on a monthly frequency.

E-Commerce Integration. Provide secure interface between StreamCanada’s licensors’ clearinghouse and Company’s e-commerce website.

Consumer Payment. At the request of Company, StreamCanada’s licensors’ will provide transaction-processing services for Financial Transactions at an additional fee.

Content Packaging. At Company’s option, StreamCanada packages Company’s Content with permits classes determined by Company at an additional fee.

Content Hosting. At Company’s option, Company may store Content stored on StreamCanada’s streaming service at an additional fee (see rates at http://www.StreamCanada.com ).

Content Encoding. At Company’s option, StreamCanada will encode Company’s content into appropriate digital format at an additional fee.

SCHEDULE B - SCHEDULE OF DIGITAL RIGHTS MEDIA FEES

a) Offer HTML Page Set-up Fee (one-time charges to set up the HTML offer web page): $65 per Offer Page (One Free Offer Page with each StreamCanada Hosting Account Subscription.

b) Content Packaging Fee (to ‘package’ encoded content for execution with ‘Offer’ Page. Does not include ‘encoding’ fee if content is not pre-encoded.): No Charge.

c) Financial Transaction Fee (percentage of price to the consumer of the Content/minimum fee): 30% of Gross Sales Collected shall be retained by StreamCanada, with the remaining 70% of Gross Sales remitted to Client. (Note: StreamCanada will pay all Merchant Account-related Transaction Fees).

d) Other Payment Processing Fees (subject to change based on change in payment gateway fees charged to StreamCanada): Consumer Charge-back = $70(CDN)/$45.00(US) each. Consumer Dispute = $25(CDN)/$10.00(US) each.

e) Client and Consumer Support Fee: First 60 minutes per month of Client Support is free $2.50(CDN)/$1.50(US) per minute for all other Client and Consumer Support if such support invokes the support from StreamCanada’s licensors. StreamCanada reserves the right to make this determination. StreamCanada will provide advanced notice of such support fees, if applicable so that client may make that determination if added support from StreamCanada’s licensors is deemed necessary

f) Streaming Media Account (Content designed for pay-per-view may either be downloadable or streamed. Regardless of preferred format, the storage and bandwidth fees are not included in the DRM service. StreamCanada provides Streaming Media Accounts to host streaming archives. Please visit our web site for additional details.

g) Optional Client “Co-Branded” Online Offer Pages are available, for additional fee. Inquire to sales@StreamCanada.com  for further information and pricing.