CustomCast™
Terms and Conditions of Use

 

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF USE MAY CHANGE PERIODICALLY.  BY USING THE CUSTOMCAST WEB SITE OR THE PRODUCTS, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN DO NOT USE THE CUSTOMCAST WEB SITE OR THE PRODUCTS.

Design Video Communications, Inc. dba DVC, Inc. and CustomCast, Inc. (hereinafter referred to as “CustomCast”) provides small businesses and organizations with a variety of tools to collect and manage email addresses and to create, distribute, and manage online email campaigns.  These tools are hereinafter referred to as “Products”.  CustomCast’s Products are “permission based” e-mail marketing tools and may not be used for the sending of unsolicited e-mail ("spam"). See our attached Anti-Spam Policy.

The following are the terms and conditions of Use for access to the CustomCast web site and the use of its Products. By clicking the ‘I accept’ button on the sign-up page, by logging in to your CustomCast account or by accessing the CustomCast services via any API interface, you accept these terms and conditions of Use.
 
1. Trademark and Copyright
Copyright © 2009 Design Video Communications, Inc.  All Rights Reserved.

This web site, and the information which it contains, is the property of Design Video Communications, Inc. and its affiliates and licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, "CustomCast" and the CustomCast logo are trademarks of Design Video COmmunications, Inc. under the applicable laws of the United States and/or other countries. Other CustomCast product or service names or logos appearing in this Site are either trademarks or registered trademarks of Design Video Communications, Inc. and/or its affiliates. The absence of a product or service name or logo from this list does not constitute a waiver of CustomCast’s trademark or other intellectual property rights concerning that name or logo.

2. Representations and Acknowledgements
Subject in each case to the terms listed in the remainder of this Agreement (as defined in Section 3 below), you hereby represent, acknowledge and agree that:

  1. The Products may not be used for the sending of unsolicited email ("spam").
  2. The Products may only be used for lawful purposes.
  3. The Email Marketing Product will be subject to monthly subscription fees once you have completed your free trial period or have exceeded the free subscriber limit. The Email Marketing Product may also be subject to per message and overage charges. For more information on fees, see Section 4 below and the Fee Schedule.
  4. The Survey Product will be subject to monthly subscription fees once you have completed your free trial period or you have exceeded the free subscriber limit or you have in excess of 100 survey responses. For more information on fees, see Section 4 below and the Fee Schedule.
  5. You agree you will not access or otherwise use third party mailing lists or otherwise prepare or distribute unsolicited email, in connection with the Products.
  6. You agree to import, access or otherwise use only lists for which all listed parties have consented to receive correspondence from you ("Permission Based Lists") in connection with your use of the Products. Mere agreement of a person or entity to participate in a survey is not consent to receive correspondence from you. For respondents to your surveys, consent to receive other correspondence is evidenced by the respondent opting into the "Join My Mailing List" link in the course of responding to your survey. You hereby covenant that you shall not use any other lists in connection with your use of the Products.
  7. You acknowledge and agree that not all intended recipients would receive all email messages sent through these products.
  8. Every email message sent by you in connection with the Products must contain the CustomCast "unsubscribe" link that allows the recipient to remove itself from your mailing list.
  9. You will comply with the restrictions on content of email messages and activities using the Products as set forth or referenced in this Agreement.
  10. You acknowledge and agree that you are the sole or designated "sender" (as such term is defined in the CAN-SPAM Act of 2003 and any rules adopted under such act) of any email message sent by you using the Products.
  11. You agree that the "from" line of any email message sent by you using the Products will accurately and in a non-deceptive manner identify your organization, your product or your service.
  12. You agree that the "subject" line of any email message sent by you using the Products will not contain any deceptive or misleading content regarding the overall subject matter of the email message.
  13. You agree to include in any email message sent by you using the Products your valid physical address, which may be a valid post office box meeting the registration requirements established by the United States Postal Service.
  14. You agree that in any email message sent by you using the Products you will not include any incentives (e.g., coupons, discounts, awards) that encourage a recipient to forward the email message to another recipient.
  15. You will adopt and maintain the Privacy Policy, which may be modified by CustomCast from time to time.
  16. If you are accessing or using the Products through a third party service or web site ("Third Party Service"), you will abide by these Terms and Conditions of Use regardless of anything to the contrary in your agreement with such Third Party Service. You shall not use such Third Party Service to avoid the restrictions set forth in these Terms and Conditions of Use.

3. Products and Customer Support
The Products are provided subject to these Terms and Conditions of Use, as they may be amended by CustomCast, and any guidelines, rules or operating policies that CustomCast may establish and post from time to time (collectively, the "Agreement"), including without limitation CustomCast's customer Privacy Policy, as linked from all email generated from CustomCast or otherwise furnished to you (the "Policy") (unless otherwise stated, all references to the Agreement shall include the Policy). By posting updated versions of the Agreement on the CustomCast.com website, or otherwise providing notice to you, CustomCast may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Products in its sole discretion. Except as otherwise provided in the Agreement, all such changes shall become effective upon the posting of the revised Agreement on the Product or at CustomCast's website. The Products are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Products are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Products. If you are using the Products in your capacity as an employee, you must have the ability to bind your employer by your use of the Product. You must complete the registration form on the CustomCast sign up web page in order to use the Products.. You shall provide true, accurate, current, and complete information about yourself as requested in the registration form. You may from time to time provide CustomCast's service personnel with remote access to your computers and other systems for the purpose of troubleshooting issues that arise in your use of the Products. You hereby waive any claim for damages from any problems that may arise from such access, including without limitation any disruption or damage caused by CustomCast or its personnel.

If you are accessing or using the Products through a Third Party Service, you agree and acknowledge that CustomCast is not responsible or liable for any actions of such Third Party Service or for any aspect or result of such Third Party Service.  You use such Third Party Service at your own risk. You further agree and acknowledge that CustomCast may terminate such Third Party Service’s ability to interact with the Products at any time, with or without notice, and in CustomCast’s sole discretion, with no liability to you or such Third Party Service.

4. Free Trial, Fees and Payment

4.1 Fees for Email Marketing Product. For the Email Marketing Product, once you have completed your free trial period or you have exceeded the free subscriber limit, you will be subject to monthly subscription fees in accordance with the Fee schedule and related information (the "Fee Schedule"). The Fees are based on the highest number of subscribers or contacts in your account at any time during the previous month. For purposes of this Agreement, each unique email address will count as one subscriber or contact. In addition, if you have more than 50,000 subscribers or contacts in your account, per message fees will be incurred when the number of messages you send in a month exceeds four times the maximum number of subscribers or contacts allowed in your current pricing tier. You will be required to submit payment monthly in advance for the Email Marketing Product (unless you have already provided payment or means of payment, such as credit card information) and may purchase, in advance, a monthly subscription for the Email Marketing Product. Access to the Email Marketing Product will be disabled until payment is received. Fees will be billed monthly or your pre-paid account will be debited monthly for the Email Marketing Product, even if you are not actively using the Email Marketing Product.

4.2 Fee Schedule & Discounts. You are responsible for reviewing the Fee Schedule from time to time and remaining aware of the fees charged by CustomCast. The Fee Schedule, including subscriber levels, is subject to change at any time in CustomCast's sole discretion. CustomCast will use good faith efforts to notify you via email prior to the effectiveness of any change to the Fee Schedule. If you receive special discounts through a marketing partner, those discounts may not be available if you cease to continue to be a customer of the marketing partner, in which case CustomCast's standard rates will apply. CustomCast may rely on information provided by the applicable marketing partner, if any, with respect to the status of your account. Repeated uploading and removing of unique email addresses in an attempt to circumvent CustomCast's Fee Schedule and billing procedures is prohibited.

4.3 Payment. Payment for Products will be made by a valid credit card accepted by CustomCast. Checks will be accepted for prepayments of at least six (6) months. Fees are payable in U.S. dollars. If the monthly payment option is selected or if you have previously provided your credit card for payment, you hereby authorize CustomCast to charge your credit card for such amounts on a regular monthly basis beginning at the end of your free trial period or when you have exceeded the free subscriber limit and continuing until such time as your account is terminated. If CustomCast is for any reason unable to effect automatic payment via your credit card, CustomCast will attempt to notify you via email and your CustomCast account will be disabled until payment is received. Amounts paid for the Products are not refundable.

5. Email, Permission Practices, Image Hosting & Prohibited Content

5.1 Subscriber Opt Out. Every email message sent in connection with the Products must contain an "unsubscribe" link that allows subscribers to remove themselves from your mailing list and a link to the then current Privacy Policy. Each such link must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to CustomCast. You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link. You shall monitor and process unsubscribe requests received by you directly within 10 days of submission, and update the email addresses to which messages are sent through your CustomCast account. Under the CAN-SPAM Act of 2003, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your account and this Agreement.

5.2 Permission Practices. You agree to import, access or otherwise use only Permission Based Lists in connection with your use of the Products. You hereby covenant that you shall not use any other lists in connection with your use of the Products. If you have used the CustomCast feature that allows you to request a recipient to confirm that you have his or her permission to send emails to him or her, and such recipient has not responded or does not respond affirmatively to such request for confirmation, you agree that you shall not send emails to that recipient. Without limiting the foregoing, you agree that you shall not utilize the Product to send any commercial electronic mail message (as that term is defined in the CAN-SPAM Act of 2003) to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting. You cannot mail to distribution lists, newsgroups, or spam or unsolicited email addresses. You cannot copy a CustomCast template or any other features or functionality from the Products and use them for any purpose other than sending email messages from the Products. Emails that you send through the Product may generate spam complaints from recipients. As a matter of privacy, CustomCast cannot share with you the email addresses of those who complain about your email campaign. You are responsible for ensuring that your email campaigns do not generate a number of spam complaints in excess of industry norms. CustomCast, in its sole discretion, shall determine whether your level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. CustomCast will terminate your use of its Products if CustomCast determines that your level of spam complaints is higher than industry norms.

5.3 Footers. For every email message sent in connection with the Products, you acknowledge and agree that CustomCast may add an identifying footer stating "Email Marketing by CustomCast," "Powered by CustomCast" or a similar message.

5.4 Images. Images hosted by CustomCast on CustomCast controlled servers may only be used in connection with the Products and for no other purpose whatsoever. To the extent you use images provided by CustomCast, CustomCast hereby grants to you a limited, non-exclusive, non-transferable sublicense to use the images in an unaltered state solely in connection with your use of the Products.

5.5 Prohibited Content. CustomCast prohibits the use of the Products or web site by any person or entity that:

  1. Provides, sells or offers to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; escort services; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons, in each case, as determined by CustomCast in its sole discretion.
  2. Displays or markets material that exploits children, or otherwise exploits children under 18 years of age, as determined by CustomCast in its sole discretion.
  3. Provides, sells or offers products, services or content frequently associated with unsolicited commercial email, a.k.a. spam, including, without limitation, online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, work at home businesses, credit or finance management, including but not limited to credit repair and debt relief offerings and stock and trading tips, and mortgage finance offers, DJ/nightclub, event/club promotions/party lists, and odds making and betting/gambling services, including but not limited to poker, casino games, horse and dog racing and college and pro sporting events.
  4. Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content, as detrmined by CustomCast in its sole discretion.
  5. Posts or discloses any personally identifying information or private information about children without their consent (or their parents’ consent in the case of a minor).
  6. Sells or promotes any products or services that are unlawful in the location at which the content is posted or received.
  7. Introduces viruses, worms, harmful code and/or Trojan horses on the Internet.
  8. Engages in any libelous, defamatory, scandalous, threatening, harassing activity.
  9. Posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence, as determined by CustomCast in its sole discretion.
  10. Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.
  11. Contains any video or audio file that you do not own the copyright of and or have the exclusive written consent of the copyright holder.

5.6 Right to Disable Access. CustomCast, at its own discretion, may immediately disable your access to the Products without refund if CustomCast believes in its sole discretion that you have violated any of the policies listed above or elsewhere in this Agreement.

6. CustomCast Forum
You agree that you are responsible for your own use of the CustomCast Community, for any posts you make, and for any consequences thereof. You agree that you will use the CustomCast Community in compliance with all applicable local, state, national, and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from your country of residence and all United States export control laws. You agree to abide by the CustomCast Forum Terms and Conditions of Use and the rules and restrictions therein. The CustomCast Forum Terms and Conditions of Use is incorporated by reference into this Agreement. CustomCast may, in its sole discretion, modify or revise the CustomCast Forum Terms and Conditions of Use at any time, and you agree to be bound by such modifications or revisions. Violation of any of the foregoing, including the CustomCast Forum Terms and Conditions of Use may result in immediate termination of this Agreement, and may subject you to state and federal penalties and other legal consequences. CustomCast reserves the right, but shall have no obligation, to investigate your use of the CustomCast Forum in order to (a) determine whether a violation of the Agreement has occurred or (b) comply with any applicable law, regulation, legal process or governmental request. Much of the content of the CustomCast Forum, including the contents of specific postings, profiles, blogs, images and videos, is provided by and is the sole responsibility of the person or people who made such postings. CustomCast does not regularly monitor the content of the CustomCast Forum, so please review the CustomCast Forum Terms and Conditions of Use for acceptable behavior in the CustomCast Forum. The CustomCast Forum is intended to provide CustomCast customers with the opportunity to exchange useful information. CustomCast does not edit any postings, and does not pre-screen or review every posting. You agree that CustomCast is not responsible for the content of any postings in the CustomCast Forum and has no duty to correct any erroneous statements on any part of the CustomCast Forum.

7. Restrictions and Responsibilities

7.1 No Rights in Software. This is an Agreement for services and access to this web site, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Products or any software, documentation, or data related to the Products ("Software"); remove any proprietary notices or labels from the Products or any Software, modify, translate, or create derivative works based on the Products or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Products or any Software.

Unless you are an authorized reseller of the Products, you may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with the Products or the Software, or any content, including but not limited to newsletters, distributed to you by CustomCast in connection with the Products. Any violation of these restrictions may, in CustomCast’s sole discretion, result in termination of this Agreement.

7.2 Permitted Use of the Products. The Products shall be used for your internal business (which includes civic or charitable) purposes only, and you shall not use the Products or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third party. If you are using the Products in any jurisdiction which restricts the ability of a software provider to restrict your right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software or Products, then you hereby covenant that, prior to engaging in such activities, you will first request that CustomCast perform such work at its standard professional services rates. CustomCast can then decide either: (i) to perform the work in order to achieve such interoperability and charge its then standard rates for such work to you; or (ii) to permit you to reverse engineer parts of the Software in order to obtain such source code, but only to the extent necessary to achieve such interoperability or (iii) provide you with the information that you need regarding the Software for the purpose for which applicable law permits you to engage in such activities despite a contractual prohibition on such activities.

7.3 Compliance with Laws & Monitoring. You shall use the Products only in compliance with this Agreement, the federal CAN-SPAM Act of 2003 and regulations thereunder and all other applicable U.S., state, local and international laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation, copyright and trademark infringement and child protective email address registry laws). Although CustomCast has no obligation to monitor the content provided by you or your use of the Products, CustomCast  may do so and may, in its sole discretion, (i) block any email messages, (ii) remove any such content, or (iii) prohibit any use of the Products that CustomCast believes may be (or is alleged to be) in violation of the foregoing.

7.4 Indemnification. You hereby agree to defend, indemnify and hold harmless CustomCast and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that (i) arises from any alleged breach of this Agreement, (ii) arises from the content or effects of any messages you distribute using the Products, (iii) arises from your activities or postings on the CustomCast Forum, (iv) arises from or relates to your use of the Products, or (v) arises from or relates to your use of a Third Party Service. In addition, you acknowledge and agree that CustomCast has the right to seek damages when you use the Products for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages. 

7.5 Your Information. In using the varied features of the Products, you may provide information about yourself or your employer (such as name, contact information, or other registration information) to CustomCast. CustomCast may use this information and any technical information about your use of the Products to tailor its presentations to you, facilitate your movement through the Product, or communicate separately with you. If you accessed the Products as a result of solicitation by a marketing partner of CustomCast, CustomCast may share your information with the marketing partner and the marketing partner may share related information with CustomCast. Except as described above. CustomCast will not provide your information, including your contact and account information, to third parties who you have not authorized to receive such information, except(i) as required by law or court order, including without limitation judicial process and law enforcement, or in the good-faith belief that such action is necessary to comply with law or a court order or (ii) if your CustomCast account was terminated from due to unsolicited commercial email being sent from your CustomCast account. CustomCast will never sell or rent your contact lists to anyone without your permission and acknowledges your ownership right in your contact lists. In the event CustomCast amends or revises the policy described in the immediately preceding sentence, it will provide advance notice of such amendment or revision.

7.6 Intellectual Property Rights in Your Content. You agree that you will not upload or transmit any contact lists, communications or content of any type to this web site or in connection with the Products that infringe, misappropriate or violate any rights of any party. By submitting ideas, concepts, inventions, or content to this web site or using them in connection with the Products, you agree that such submission is non-confidential for all purposes. If you make any such submission, you agree that you will not send or transmit to CustomCast or to any third party using the Products, any communication or content that infringes or violates any rights of any party. If you submit any business information, ideas, concepts or inventions or content to CustomCast by email, you agree such submission is non-confidential for all purposes. If you make any submission to this web site or if you submit any business information, idea, concept or invention to CustomCast by email, you automatically grant—or warrant that the owner of such content or intellectual property has expressly granted—CustomCast a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display such content in any manner.

8. Termination
You may terminate this Agreement at any time by calling CustomCast Customer Support. There are no refunds for any fees paid. YOU ARE RESPONSIBLE FOR TERMINATING YOUR ACCOUNT AND THIS AGREEMENT AND CUSTOMCAST IS NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT AND ANY CREDIT CARD CHARGES AND FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT.

CustomCast may terminate this Agreement or the Products, disable your account or put your account on inactive status, in each case at any time with or without cause, and with or without notice. CustomCast shall have no liability to you or any third party because of such termination or action.

CustomCast may delete any of your archived data within 30 days after the date of termination. After termination, you shall process all unsubscribe requests within 30 days of your last email campaign. CustomCast will provide upon request the list of unsubscribe requests from your account. Under the CAN-SPAM Act of 2003, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your account and this Agreement. All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.
If your account is classified (at CustomCast's sole discretion) as inactive for over 120 days, CustomCast has the right to permanently delete your subscriber data. CustomCast will use good faith efforts to contact you via email prior to taking any permanent removal actions.

9. Warranty Disclaimer; Remedies
USE OF THE PRODUCTS AND ANY RELIANCE BY YOU UPON THE PRODUCTS, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. CUSTOMCAST DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS. THE PRODUCTS ARE PROVIDED "AS IS" AND CUSTOMCAST DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Your sole and exclusive remedy for any failure or nonperformance of the Products shall be for CustomCast to use commercially reasonable efforts to adjust or repair the Products.

10. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL CUSTOMCAST OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "CUSTOMCAST") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF CUSTOMCAST SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, CUSTOMCAST IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF CUSTOMCAST TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE PRODUCTS IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY CUSTOMCAST TO YOU IN THAT TWELVE (12) MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

11. Restricted Persons; Export of Products or Technical Data
You hereby warrant that you are not a Restricted Person. For purposes of this Agreement, you are a Restricted Person if you or any officer, director, or controlling shareholder of the entity on behalf of which you are using the Products is (1) a national of or an entity existing under the laws of Cuba, Iran, Sudan, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Department of the Treasury; (2) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Department of the Treasury; (3) listed on the Denied Persons List or Entity List by the U.S. Department of Commerce; (4) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (5) owned, controlled, or acting on behalf of a Restricted Person. If you become a Restricted Person during the term of this Agreement, you shall notify CustomCast within twenty-four (24) hours, and CustomCast shall have the right to terminate any further obligations to you, effective immediately and with no further liability to you, but without prejudice to your outstanding obligations to CustomCast.

You agree that you shall not utilize the Products to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the U.S. Government. You may not remove or export from the United States or allow the export or re-export of the Products, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.

12. Links to Third-Party Web Sites
This web site may contain links to non-CustomCast web sites. These links are provided to you as a convenience, and CustomCast is not responsible for the content of any linked web site. Any non-CustomCast web site accessed from this web site is independent from CustomCast, and CustomCast has no control over the content of that web site. In addition, a link to any non-CustomCast web site does not imply that CustomCast endorses or accepts any responsibility for the content or use of such web site.

13. No Implied Endorsements
In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by CustomCast of that third party or of any product or service provided by a third party.

14. Notice and Take Down Procedures; Copyright Agent
If you believe any materials accessible on or from this web site or the Products infringe your copyright, you may request removal of those materials (or access thereto) from this web site by contacting CustomCast’s copyright agent (identified below) and providing the following information:

  1. Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
  2. Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
  3. Your name, address, telephone number and (if available) email address.
  4. A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
  5. A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner’s behalf.
  6. A signature or the electronic equivalent from the copyright holder or authorized representative.

CustomCast’s agent for copyright issues relating to this web site is as follows:

Elizabeth Porter
Compliance Manager
CustomCast, Inc.
7301 E. 46TH ST.
Indianapolis, IN  46226
Phone: (317) 544-2150
Fax: (317) 544-2160
Email: compliance@CustomCast.com

In an effort to protect the rights of copyright owners, CustomCast maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of this web site who are repeat infringers.

15. Open Positions on Career Pages
CustomCast may list open employment positions on this web site. Any such postings are for informational purposes only and are subject to change without notice. You should not construe any information on this web site or made available through this web site as an offer for employment. Nor should you construe anything on this web site as a promotion or solicitation for employment not authorized by the laws and regulations of your locale.

16. Username and Password
You are responsible for maintaining the security of your account, passwords, and files. CustomCast will accept the instructions of any individual who claims to be authorized to direct changes to your account so long as such person presents your username and password on-line, by email or by phone, or through a Third Party Service, if any, through which you access the Products. CustomCast has no knowledge of your organizational structure, if you are registering for the Products as an entity, or your personal relationships, if you are a person. CustomCast shall not be responsible for the actions of any individuals who misuse or misappropriate your contact lists or other assets using your username and password.

17. Guarantees
CustomCast make no guarantees as to the effectiveness of it’s product.  Actual results could differ materially from those stated or implied due to a number of factors, including risk factors stated or unstated in these terms and conditions of use.  Past performance is not necessarily indicative of future results.

18. Miscellaneous

18.1 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

18.2 CustomCast and you agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.

18.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind CustomCast in any respect whatsoever.

18.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.

18.5 The Agreement shall be governed by the laws of the State of Indiana, USA without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in the County of Marion in the State of Indiana.

Additional Information
If you have any questions about the rights and restrictions above, please contact CustomCast by email at info@CustomCast.com.
Copyright ©2009 Design Video Communications, Inc.   All Rights Reserved.
Revised May 2009

CustomCast Copyright© 2009 DVC, Inc. All rights reserved.