Before you complete the registration process, you must read and accept the terms of the DIY Media Services Agreement below, and acknowledge that you authorize all storage fees for your use of DIY Services.
DIY MEDIA SERVICES AGREEMENT
Last Updated: March 25, 2011
PLEASE READ CAREFULLY. THIS DIY MEDIA SERVICES AGREEMENT (“AGREEMENT”) CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL, AN ENTITY, OR ON BEHALF OF AN ENTITY (“PROVIDER”)) AND DIY MEDIA, INC., ITS SUPPLIERS AND LICENSORS (COLLECTIVELY, “DIY MEDIA”) AND GOVERNS PROVIDER’S USE OF DIY MEDIA’S PROPRIETARY ONLINE TOOLS AND SERVICES THAT ALLOW PROVIDER TO FACILITATE ONLINE TRANSACTIONS, MANAGE CONTENT AND PRODUCT OFFERINGS, AND MARKET AND PROMOTE THE SAME TO THIRD PARTY CUSTOMERS (“CUSTOMERS”) (COLLECTIVELY, THE “DIY SERVICES”).
BY USING ANY OR ALL OF THE DIY SERVICES, PROVIDER AGREES THAT: (A) IT HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT; (B) IT IS AUTHORIZED TO USE THE DIY SERVICES; AND/OR (C) IT IS AUTHORIZED TO ACCEPT THE OBLIGATIONS SET IN THIS AGREEMENT ON ITS BEHALF OR ON BEHALF OF ANOTHER PERSON OR ENTITY. ANY UNAUTHORIZED USE OF THE DIY SERVICES IS STRICTLY PROHIBITED.
ADDITIONALLY, ANY AND ALL USES OF THE DIY SERVICES ARE SUBJECT TO DIY MEDIA’S TERMS OF USE (‘TERMS OF USE”) AND DIY MEDIA’S PRIVACY POLICY ("PRIVACY POLICY"). THE DIY SERVICES (INCLUDING, WITHOUT LIMITATION, ITS CAPABILITIES, FUNCTIONS AND/OR OTHER CHARACTERISTICS), THIS AGREEMENT, THE TERMS OF USE AND PRIVACY POLICY MAY BE UPDATED FROM TIME TO TIME IN THE SOLE DISCRETION OF DIY MEDIA. BY CONTINUING TO USE THE DIY SERVICES AFTER ANY SUCH UPDATES, PROVIDER AGREES BE BOUND BY ALL SUCH CHANGES AND THAT DIY MEDIA SHALL HAVE NO LIABILITY TO IT AS A RESULT.
IF PROVIDER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, IT IS NOT AUTHORIZED TO USE THE DIY SERVICES.
FOR GOOD AND VALUABLE CONSIDERATION, THE SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS:
1. USER ACCOUNT. Prior to using the DIY Services, Provider and/or its representative will be required create a user account (“User Account”) where, among other things, Provider will be able to: (a) provide contact and financial information including tax identification; (b) elect which services and tools of the DIY Services it wishes to use; (b) select the presentation, management, distribution options, pricing and access to its multimedia content, merchandise and related property (metadata, images, pictures, logos, written descriptions, artwork and other promotional and marketing materials) (collectively “Content”); (c) select payment options for specific DIY Services; and (d) elect to participate in other DIY Media programs. DIY Media shall provide the DIY Services in accordance with the preferences and sections set by Provider. Provider is solely responsible and liable for all activity occurring under its User Account including, without limitation, maintaining the confidentiality of its User Account identification(s) and password(s). The DIY Services may include products and services supplied by third party vendors including, without limitation, payment and collection services, digital rights management tools and data storage, each of which may be subject to separate license agreements (“Third Party Components”). Provider acknowledges that failure to accept any third party license agreements may limit its access to certain Third Party Components resulting in limitations to the DIY Services.
2. DIY SERVICES.
(a) DIY Media Platform. The DIY Media Platform is a proprietary service that provides Provider with online tools to upload, manage, market and distribute Content directly to Customers. Such tools include the ability to generate embeddable software code that Provider may place on legitimate websites and in legitimate marketing materials allowing for the sale and distribution of Content (“Widget”). When a Customer clicks on a Widget, the Widget will interface with the selected payment service (as set by Provider) and, upon payment by a Customer, facilitate the transaction (each a “Transaction”). Upon receipt of payment by DIY Media for a Transaction, Provider shall be paid in accordance with payment terms further detailed on the Transaction Schedule and incorporated by this reference
(b) C3 Delivery. In utilizing the DIY Services, Provider may elect to upload Content to DIY Media’s “cloud” data storage, and data management service (“C3 Delivery”). C3 Delivery is a remote access “cloud” data service facilitated by Third Party Components enabling Provider to upload, manage and access its Content. Fees and costs associated with C3 Delivery are further detailed on the Transaction Schedule.
(c) Incentive Program. When available, Provider may also elect to participate in DIY Media’s incentive program where it can refer its own Content as well as third-party Content to its Customers and other third parties to earn additional compensation (“Incentive Program”).
(d) Supplemental Services. DIY Services may include supplemental services such as Content transcoding, Widget creation and integration, Content management, website creation or unique functionality development (“Supplemental Services”). Supplemental Services shall be governed by a separate agreement. If you are interested in Supplemental Services, please contact DIY Media directly at info@diymediaservices.com.
3. GRANT OF LICENSE; SCOPE OF LICENSE; RESTRICTIONS.
(a) License. Provider grants DIY Media, during the Term (as defined below) a worldwide, limited, royalty-free, non-exclusive license to perform such acts with respect to the Content as necessary to provide the DIY Services selected by Provider in its User Account including, without limitation, the rights to: (i) secure, encode, transcode, distribute, host, cache, store, route, watermark, reformat, exhibit, broadcast, publicly display, publicly perform, promote, stream, copy, and/or reproduce, sell, market, virally market, or otherwise exploit Content via platforms supported by DIY Media that are now known or hereafter developed; (ii) create, analyze and use algorithms, statistical data and usage reports based on access to and use of Content (“Service Data”); (iii) use Content for the purpose of testing DIY Media’s internal processes; and (iv) use Content to enable searchable and scalable libraries.
(b) Responsibility for Content. The DIY Services are passive conduits for Content. Provider is solely responsible for all matters arising out of or in connection with its Content including, without limitation, compliance with all applicable laws, rules and regulations (including the rules and regulations of third party websites and platforms where Provider places Widgets), and obtaining all rights, approvals, licenses, consents and other permissions necessary to provide Content to DIY Media and for DIY Media to perform the DIY Services. DIY Media assumes no responsibility for monitoring for possible infringement or enforcing Provider’s intellectual property rights.
(c) Prohibited Conduct. Provider shall not engage in conduct that may be considered illegal or tortious including, without limitation, disclosing personally identifiable information, infringing the intellectual property or other proprietary rights of third parties, sublicensing or otherwise transferring its User Account to third parties, modifying, altering, translating, reverse engineering, decompiling or disassembling the DIY Services or its related documentation, and creating derivative works based upon the DIY Services (collectively, “Prohibited Conduct”). DIY Media may remove Content in accordance with Section 2(d) from the DIY Services, if, in its sole discretion, Provider engages in, or enables third parties to engage in, Prohibited Conduct.
(d) Takedown/Removal. Provider may choose to remove Content from the DIY Services at any time via its User Account, however DIY Media reserves the right to process outstanding Transactions (e.g. Transactions that had been initiated but not completed when Provider chose to remove specific Content) and issue refunds or charge-backs in connection with the removed Content for thirty (30) business days from when Provider chose to remove Content. DIY Media may, in its sole discretion, remove Content that violates Section 3(c) or if DIY Media receives notice of a dispute associated with Content. Notwithstanding the foregoing, Provider acknowledges that removed Content may continue to reside on C3 Delivery due to the nature of server archival processes.
(e) Compliance with CAN-SPAM. In addition to refraining from Prohibited Conduct, Provider will at all times comply with DIY Media’s SPAM polices and the CAN-SPAM Act of 2003 (http://www.spamlaws.com/federal/can-spam.shtml). Provider will not, directly or indirectly, incorporate any or all of the DIY Services in any “junk mail,” or “spam” sent to third parties which includes the following: (i) the sending of unsolicited email; (ii) the use of misleading or false header information; (iii) the use of inaccurate subject lines; (iv) not identifying messages as advertisements; (v) not providing a physical location in the text of an email; and (vi) not allowing for and enforcing of opt out requests made by Customers (“DIY Media SPAM Policies”).
4. CONTENT DELIVERY. When applicable, Provider shall provide and/or upload Content to the DIY Services in accordance with DIY Media’s specifications as communicated to Provider from time to time..
5. FEES; PRICING; OTHER TERMS.
(a) Fees; Pricing. Fees and pricing for the DIY Services are described in Transaction Schedule.
(b) Taxes. All fees or payments due hereunder are exclusive of any applicable taxes. Provider is solely responsible for timely payment of all applicable sales, use, import or export taxes, duties, fees, value-added taxes, surcharges, tariffs or other amounts attributable to this Agreement. At any time and for any reason, DIY Media reserves the right to request physical copies of any tax related documentation required by law and may withhold payment of any amounts owed to Provider until such documentation is received.
(c) Fee Revisions; Changes. DIY Media reserves the right, in its sole discretion, to change, add or revise fees. In the event DIY Media changes or adds any fees under this Agreement, DIY Media will provide Provider thirty (30) days prior written notice; continued use of the DIY Services shall act as acceptance of any fee revision. As used herein, email shall constitute written notice.
6. CONFIDENTIALITY.
(a) Non-Disclosure. Each party may have access to information that is confidential to the other party (“Confidential Information”). Confidential Information means any oral, written, graphic or machine-readable information, including, without limitation, the fees, pricing, payment and other financial terms of this Agreement, Service Data, documentation, trade secrets of any kind, all forms and types of financial, business, scientific, technical, or economic information including patents, reports, research, product plans, technology, processes, techniques, methods, know how, markets, software (including source and object code), computer programs, program devices, formulas, algorithms, compilations, business plans and strategies (financial, strategic, marketing or otherwise), agreements with third parties, services, operations, customers, or finances of the disclosing party, whether tangible or intangible, and whether or how stored, compiled, or memorialized (whether physically, electronically, graphically, photographically or in writing) which Confidential Information: (i) is designated in writing to be confidential or proprietary; or (ii) if given orally, is indentified as confidential or proprietary at the time of the oral disclosure; or (iii) given the nature of the information and the circumstances surrounding its disclosure, would be understood to be confidential or proprietary by a reasonable person. Confidential Information does not include information that: (x) is or becomes a part of the public domain through no act or omission of the other party; (xi) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (xii) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (xiii) is independently developed by the other party without use of or reference to the other party’s Confidential Information. In addition, this Section will not be construed to prohibit court ordered disclosures; provided, however, that the responding party shall first have given reasonable notice to the other party and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued.
(b) Use of Confidential Information. The parties agree, unless required by law, not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than in the performance of this Agreement. Each party shall take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in breach of this Agreement. The parties agree to hold each other’s Confidential Information in confidence during the term of this Agreement and for a period of three (3) years thereafter. Each party acknowledges that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this Section and that such breach would cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under this Agreement.
7. TERM/TERMINATION. The term of this Agreement is one (1) year from the Effective Date and shall automatically renew for consecutive one (1) year period(s) unless terminated as set forth herein (“Term”). DIY Media may terminate or suspend Provider’s access to the DIY Services without penalty for any of the following reasons: (a) a breach by Provider of this Agreement; (b) if Provider’s User Account has not be logged into for a consecutive six (6) month period; (c) if Provider is more than one (1) months delinquent in any payments due DIY Media; (d) upon thirty (30) days’ written notice; or (e) if DIY Media stops offering the DIY Services. Provider may terminate this Agreement at any time by cancelling its User Account. Upon the expiration or termination of this Agreement for any reason, all licenses granted herein shall terminate, Provider shall immediately discontinue all use of DIY Services and each party shall destroy or return any and all Confidential Information. DIY Media shall make reasonable efforts to promptly remove its User Account and Content. Provider understands and acknowledges that due to the nature of servers, removal of its User Account and Content may require additional time to be completely purged. Applicable provisions of Sections 5, 6, 10, 11, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23 as well as all payment obligations shall survive termination for any reason.
8. SECURITY. DIY Media shall use commercially reasonable measures to protect unauthorized access or unauthorized distribution of Content and its User Account. Specifically, DIY Media shall employ safeguards, as it deems necessary, to monitor the DIY Services infrastructure to protect against unauthorized third party access. PROVIDER UNDERSTANDS THAT REGARDLESS OF THE EFFORTS DIY MEDIA UNDERTAKES WITH RESPECT TO SECURITY OR OTHERWISE, DIY MEDIA MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY OF THE DIY SERVICES FOR PROVIDER’S PURPOSES, OR THAT THE USE OF THE DIY SERVICES SHALL BE ERROR-FREE OR SECURE.
9. CUSTOMER/TECHNICAL SUPPORT. DIY Media will provide limited online customer and technical support in accordance with the DIY Media’s service level guidelines as communicated by DIY Media to Provider from time to time.
10. OWNERSHIP. Excluding Content, DIY Media owns all right, title and interest in and to the DIY Services including all associated and underlying proprietary intellectual property rights under copyright, trade secret, patent, trademark and/or other applicable domestic and international laws. Any and all trademarks that DIY Media uses in connection with the DIY Services are owned by DIY Media or respective licensors and any goodwill associated with the use of such trademarks shall inure to the benefit of the respective owners.
As between Provider and DIY Media, Provider owns all right, title and interest in and to the Content (or has obtained all necessary rights in and to the Content) including all associated and underlying proprietary intellectual property rights under copyright, trademark and/or other applicable domestic and international laws. Any and all trademarks provided by Provider are owned by Provider or its respective licensors and any goodwill associated with the use of such trademarks shall inure to the benefit of the respective owners.
Nothing in this Agreement shall be construed to transfer or otherwise assign, in whole or in part, a party’s intellectual property to the other party and each party shall not to take any action which challenges the validity of each other’s respective ownership rights in and to the same. All rights not granted herein are reserved by the respective parties.
11. FEEDBACK. Notwithstanding Section 10, if Provider provides feedback to DIY Media regarding any aspect of DIY Media or the DIY Services, DIY Media shall own all rights in and to such feedback and any derivative products or services developed thereof. Provider shall assist DIY Media in all necessary actions to effect DIY Media’s rights in and to such feedback and any associated intellectual property derived therefrom including the execution of any further documents. If Provider is unavailable, or fails to execute such documents when requested to do so for any reason, DIY Media may execute the aforementioned documents as Provider’s attorney in fact; appointment of which is irrevocable for this sole purpose.
12. PUBLICITY AND MARKETING. Neither party is permitted to issue any press releases or make public statements relating to this Agreement or the relationship between the parties without the other party’s prior written approval, which shall not be unreasonably withheld or delayed. Upon DIY Media’s reasonable, written request, Provider shall provide Provider’s logo for DIY Media’s promotional and marketing use. Provider shall have the opportunity to approve all such uses, which shall not be unreasonably withheld or delayed; provided, however that once approved, substantially similar uses of the logo by DIY Media will not require additional approval.
13. WARRANTIES.
(a) Mutual. Notwithstanding the foregoing, each party represents and warrants that it (i) has full authority to enter into this Agreement and exercise its rights hereunder, (ii) may grant the rights and licenses contained herein, and (iii) will comply will all federal, state and local laws and regulations.
(b) Provider. Provider represents and warrants that: (i) Content will not violate any intellectual property right of any third party; (ii) it will abide by the DIY Media SPAM Policies; (iii) it will not engage in Prohibited Conduct; (iv) no use of the DIY Services shall violate any agreement between Provider and any third party; and (v) it is solely responsible and liable for: (1) obtaining all necessary consents and licenses from artist(s), actors, directors, performers, writers, producers, or any other individuals who appear in the Content or the results and proceeds of whose services are utilized in the Content; (2) obtaining any required synchronization and master use licenses from the owners of any musical compositions and sound recordings embodied in the Content (or their designated representatives); (3) any payments to any labor unions and guilds, to the extent required under applicable collective bargaining agreements or otherwise (e.g., syndication, residuals, re-use, rerun and other similar fees); and (4) obtaining public performance licenses from public performance rights collection organizations (e.g., ASCAP, BMI or SESAC).
14. DISCLAIMER OF WARRANTIES. DIY MEDIA MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY OF THE DIY SERVICES FOR PROVIDER’S PURPOSES; OR THAT THE DIY SERVICES SHALL BE SECURE, UNINTERRUPTED OR ERROR-FREE; OR THAT THE DIY SERVICES SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY COMPONENT, TECHNOLOGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA; OR THAT THE DIY SERVICES ARE AUTHORIZED BY DIY MEDIA FOR USE WITH THIRD PARTY PRODUCTS, WEBSITES AND/OR SERVICES. THE DIY SERVICES ARE PROVIDED “AS IS" AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
15. INDEMNIFICATION. Each party shall indemnify and hold the other party (including its officers, employees, agents, parents, subsidiaries, affiliates, licensors business partners and suppliers) harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with any actual or alleged breach of its representations or warranties hereunder. In addition, Provider shall indemnify, defend and hold DIY Media harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including, without limitation, reasonable attorneys' fees and costs) arising out of or in connection with Content. A party’s obligation to indemnify the other party is expressly conditioned on the indemnified party: (a) giving written notice of the claim promptly to the indemnifying party; (b) giving the indemnifying party control of the defense and settlement of the claim utilizing, if necessary, legal counsel to be selected by the indemnifying party upon reasonable approval of the other party; (c) providing the indemnifying party with all available information and assistance (at the indemnifying party’s expense); and (d) not compromising or settling such claim, without the other party’s prior written consent, which may not be unreasonably withheld.
16. EXCLUSION OF DAMAGES; LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DIY MEDIA BE LIABLE TO PROVIDER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE DIY SERVICES, OR THIRD PARTY CLAIMS ARISING FROM OR RELATED TO CONTENT OR USE OF THE DIY SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
PROVIDER’S EXCLUSIVE REMEDY AND DIY MEDIA’S TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT FOR ANY REASON SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY PROVIDER, UP TO THE GREATER OF THE AMOUNTS PAYABLE BY DIY MEDIA TO PROVIDER HEREUNDER OR FIVE HUNDRED U.S. DOLLARS ($500.00). THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE FOR ANY REASON.
ADDITIONALLY, NEITHER PARTY SHALL BE LIABLE FOR ANY FAILURE TO PERFORM ANY RESPECTIVE OBLIGATIONS UNDER THIS AGREEMENT DUE TO INTERRUPTIONS, LIMITATIONS, DELAYS AND/OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET RESULTS DELAYS, DELIVERY FAILURES OR ANY OTHER DAMAGES BEYOND THE PARTIES’ REASONABLE CONTROL.
17. INDEPENDENT PARTIES. The parties shall at all times be independent contractors, and not employees or agents of the other in connection with the performance of the Agreement. The parties shall: (a) not enter into any contract, agreement or other commitment, or incur any obligation or liability, in the name or otherwise on behalf of the other party without prior written consent; (b) not be entitled to any workers' compensation, pension, retirement, insurance or other benefits; (c) retain full control over the manner in which they perform their obligations under this Agreement; and (d) have full responsibility for all costs, taxes or liabilities of their respective businesses including employment and B&O taxes.
18. REMEDIES. Notwithstanding any of the foregoing, Provider agrees that monetary damages may be inadequate to compensate DIY Media for the unique losses to be suffered in the event of a breach of this Agreement, and that Provider shall be entitled to, in addition to any other remedy it may have under this Agreement or at law, injunctive relief including specific performance of the terms of this Agreement without the necessity of posting bond.
19. NOTICES. All notices and other communications required or permitted by this Agreement shall be in writing, unless otherwise specified, and shall be delivered personally, by e-mail (with a confirmation of read-receipt), first class mail, fax (and confirmed by mail), registered or certified mail, or overnight delivery service, at the address listed below or provide by Provider in creating its User Account. Provider is solely responsible for ensuring its contact information is current.
Notices shall be effective upon the earlier of receipt during the recipient’s normal business hours, or the next business day if delivered after the recipient’s normal business hours, or three business days after mailing by first class postal service.
20. INSURANCE. Each party shall maintain insurance policies sufficient to perform its obligations contained herein.
21. ARBITRATION. Provider and DIY Media agree that the exclusive remedy for all disputes and claims relating in any way to, or arising out of, this Agreement or Provider’s use of the DIY Services (including the arbitrability of any claim or dispute and the enforceability of this paragraph), or to any other alleged act or omission by Provider or DIY Media toward the other, shall be final and binding arbitration. The arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") before a panel of three arbitrators and conducted in the State of Washington. The parties also agree that the AAA Optional Rules for Emergency Measures of Protection shall apply to the proceedings. The parties may only litigate in court only to compel arbitration under this Agreement or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrators. To the extent that Provider has breached or has indicated its intention to breach this Agreement in any manner which violates or may violate DIY Media’s intellectual property rights, or may cause continuing or irreparable harm to DIY Media (including, but not limited to, any breach that may impact DIY Media’s intellectual property rights, or a breach due to reverse engineering), DIY Media may seek injunctive relief, or any other appropriate relief, in any court of competent jurisdiction. Provider and DIY Media must commence an arbitration by filing a demand for arbitration with the AAA within ONE (1) YEAR after the date the party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period (If applicable law prohibits a one-year limitations period for asserting claims, the claim must be asserted within the shortest time period in excess of one year that is permitted by applicable law). To the fullest extent permitted by applicable law: no arbitration under this Agreement shall be joined to an arbitration involving any other current or former customer, end user or licensee of DIY Media, whether through class arbitration proceedings or otherwise; no finding or stipulation of fact in any other arbitration, judicial or similar proceeding may be given preclusive or collateral estoppel effect in any arbitration hereunder (unless determined in another proceeding between the parties); and no conclusion of law in any other arbitration may be given any weight in any arbitration hereunder (unless determined in another proceeding between the parties). This Agreement shall be governed by the laws of the State of Washington and the Federal Arbitration Act, without regard to conflicts of law provisions, and you hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington.
22. GENERAL. This Agreement, together with its incorporated references, constitutes the complete and final agreement between Provider and DIY Media with respect to its subject matter and supersedes any and all prior and contemporaneous communications, negotiations, term sheets or agreements regarding the subject matter contained herein. If any provision of this Agreement is held unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. Provider may not transfer or assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of DIY Media. DIY Media may transfer or assign this Agreement and its conditions and obligations, in whole or in part, to third parties of its choosing. This Agreement shall inure to the benefit of and be binding upon DIY Media’s or Provider’s respective successors and permitted assigns.
23. CONTACT INFORMATION
DIY Media, Inc.
1411 Fourth Avenue
Suite 910
Seattle, Washington 98101
