Terms of Use

Nov. 2010
General Terms and Conditions for all Service and access to this Site.

DEFINITIONS

In these terms and conditions the following words shall have following meanings:

“Archive” shall mean archive of data stored on behalf of its customers which archive may be online and/or offline;
“Archiving Service” shall mean the storage of data uploaded to the Service in the name of a customer in the Archive;
“Bugs” shall mean viruses, worms, logic bombs, time locks, time bombs, Trojan horses and bugs;
“Customer” shall mean the individual customer using the Service pursuant to this Contract;
“Data” shall mean all data uploaded by or on behalf of the Customer to the Site;
“Direct Delivery” shall mean the delivery of data electronically and/or by any and all forms of telephony to include by and via the Internet and/or any fixed line;
“Permitted Access” shall mean access to non public areas of the Site such as a Workspace with or without authority to incur charges on behalf of the Customer;
“Permitted User” shall mean those persons nominated by the Customer to whom a password shall be allocated and who shall have Permitted Access;
“Playout Order Form” shall mean the playout order form for completion in and submission via the online ordering facility comprised in the Service;
“Service” access to the ioGates.com application through the Site and the services and facilities provided via the Site from time to time to include access to designated Workspace and the Archiving Service together with access to and/or use of additional support services in connection with the Customer’s and Permitted User’s use of all such facilities and services;
“Site” shall mean the website located at http://www.iogates.com or such address as ioGates may from time to time substitute therefore;
“Upload Charges” charges incurred for uploading data to the Site whether to a Workspace or to the Archive, the current rates for which are quoted on the Site;
”Workspace” an area (Approvals and Library) of the Site which may only be accessed by the Customer and Permitted Users and to which data may be uploaded for review and approval by Permitted Users;
“This Contract” these terms and conditions.

THE SERVICE

All Service and access to this Site shall be subject to these Terms and Conditions.

The Service is subject to ioGates’ acceptance of the Customer’s application and establishment of an account.

Upon ioGates’ acceptance of the Customer’s application a password will be allocated to the Customer using a current email address to become a user of the Service.

On establishment of an account with ioGates, the Customer shall have the ability to nominate Permitted Users and shall specify the extent to which individual Permitted Users may have Permitted Access. Each Permitted User will be allocated a password by ioGates. It is the responsibility of the Customer to notify ioGates via the Service of further Permitted Users or to request that ioGates revokes some or all of a Permitted User’s Permitted Access. The Customer shall be solely responsible for the payment of all charges incurred by Permitted Users and for the acts and defaults of all Permitted Users.

All passwords must be kept strictly confidential. The Customer shall be solely responsible for maintaining the confidentiality of all passwords issued to it and its permitted Users and shall warrant that all Permitted Users to whom passwords are issued shall keep them confidential.

The Customer shall notify ioGates immediately if the Customer becomes aware of any unauthorised use of any password issued to it or any Permitted User or if the Customer believes that any such password may have become known to an unauthorised third party.

ioGates has no responsibility or liability, for any loss or damage caused by the use of any password by any person other than the Permitted User to which it shall have been issued. ioGates has the right to – but has no obligation to require – that the Customer confirms that all Permitted Users shall continue to have the relevant Permitted Access and may require that passwords are changed from time to time.

Any change to the Customer’s or any Permitted User’s registered email address shall be notified immediately by the Customer to ioGates.

The Customer is responsible for obtaining the equipment and paying all charges necessary to access and use the Site and the Service.

ACCESS AND UPLOAD AND MAINTENANCE OF DATA

The Customer and, if applicable, Permitted Users shall, subject to the Customer’s payment of all relevant charges in accordance with condition 4 have the right to:

upload data to a defined Workspace (the Customer should establish a separate Workspace for each project);

upload data to the Archive utilising the Archiving Service;

utilise such other services and/or facilities as shall from time to time comprise the Service.

The Customer is responsible for obtaining the equipment and paying all charges necessary to access and use the Site and the Service.

The upload of data to the Service shall require that the data have been encoded into a supported format. Upon the Customer’s request ioGates may assist the Customer to encoding data into a supported format and upload the encoded data to the applicable Workspace or the Archive. ioGates shall only undertake encoding from a copy in a suitable format of the relevant data. No original masters of the relevant data will be encoded or converted.

The Customer may at any time request:

the procurement by ioGates of a copy of any Archived Data to the Customer, any Partner or any third party;

deletion of any Archived Data from the Archive; and

transfer of any Archived Data to the Customer or any third party.

If the person to whom the copy of the applicable Archived Data is to be provided or the applicable Archived Data is to be transferred is incapable of receiving the same by way of Direct Delivery, the relevant Archived Data shall be provided or transferred in such form of physical media as the Customer and ioGates shall agree. ioGates reserves the right to levy charges for its services pursuant to this condition 3.4. The level of any such charges shall be agreed with the Customer prior to ioGates’ procurement of the applicable service. Unless otherwise agreed in writing, ioGates do not guarantee any performance or delivery times in respect of the procurement of any copies of any Archived Data and/or its transfer.

CHARGES AND CREDIT TERMS

The Service shall be subject to the Customer’s payment of the applicable charges. All charges quoted on the Site are exclusive of VAT.

The Site will specify the charges payable in respect of all chargeable components of the Service from time to time, which charges shall be subject to change from time to time. ioGates may at any time introduce charges for components of the Service, which may have been provided without charge but shall give notice on the Site of the introduction of any such charges.

The Upload Charge (calculated in accordance with the prevailing rates) will be payable in respect of the upload of data to a Workspace and the Archive.

ioGates shall invoice the Customer for all charges incurred by the Customer and Permitted Users and ioGates must receive payment within one (1) month of the date of the invoice failing which any overdue amounts shall be subject to an interest at a rate of 7% above the official discount rate of the Danish National Bank from time to time, from the due date of payment to the actual date of payment.

In the event the Customer wishes ioGates to provide any services not forming part of the Service such as conversion and encoding services, such services shall be subject to the Customer and ioGates having agreed a charge for the procurement of the same. The procurement of such services may be subject to these terms and conditions or other terms and conditions.

Charges may be subject to adjustment in the event that:

additional costs caused by defective materials supplied by the Customer or a third party, by materials in an unsuitable format or a different format to that which ioGates are expecting to receive the same, or by materials of an unsuitable quality that are subject to normal processing; or

the information supplied by the Customer or a third party in connection with the services is inadequate, inaccurate or misleading; or

the Customer or any third party changes the requirements for the services to be rendered; or

additional costs are incurred by ioGates due to exceptional circumstances outside ioGates’ control including currency fluctuations and changes in third party costs.

ioGates reserves its right to suspend and/or terminate the Customer’s and all Permitted User’s access to the Service pending payment of any sum due from the Customer under any contract between the Customer and ioGates.

ioGates reserves the right to claim payment in advance of the procurement of any services comprising the Service or any other separately quoted for services or goods.

Payment of all charges shall only be made in the currency in which they are invoiced and shall not be subject to any deductions whatsoever.

CHANGE OF ORDER

ioGates may but shall not be obliged to accept change or cancellation of an order of any services requested by the Customer. Any accept shall be in writing. ioGates reserves the right to charge from the Customer full compensation for any loss or cost arising from such cancellation or change. In the event the cancellation is within 24 hours prior to the date on which ioGates is due to provide the same or commence procurement of the same, ioGates shall be entitled to charge for the ordered services in full.

The time for performance or delivery of the Service or any services or goods shall be dependent upon prompt receipt of all necessary information, instructions or approvals from the Customer. ioGates shall have no liability to the Customer when ioGates has complied with instructions given by the Customer in the event the Customer has varied the instructions but failed to communicate the variation to ioGates or without sufficient information or too late to enable ioGates to stop its compliance with the original instructions.

The Customer shall pay all amounts owing to ioGates in full and shall not exercise any rights of set off or counterclaim against invoices submitted.

DATA, RIGHTS AND DATA PROTECTION

The Customer shall itself or shall ensure that the Customers’ client shall retain a back up copy of all data uploaded to the Site.

At the Customer’s request, ioGates shall at agreed intervals and at an agreed charge supply to the Customer physical media, which reproduces all audio visual data uploaded to the Service by the Customer, which has not previously been so supplied.

The Customer acknowledges that the data uploaded to the Service may be accessed by ioGates’ personnel as part of the procurement of and maintenance of the Service. Such access may take place to upgrade the Service and any hardware, to conduct routine maintenance of the Service and the hardware by which it is made available, to resolve service interruptions, to resolve support problems and in connection with the management of the Archive to retrieve, copy and transfer Archived Data.

The Customer shall be solely responsible for the content of all data which the Customer, whether for itself or a third party, and/or which a Permitted User shall upload to the Service and/or which the Customer shall require ioGates to provide copies of and/or which shall be transferred to a third party via the Service. The Customer warrants to ioGates that no such data shall contain any Bugs (being viruses, worms, logic bombs, time locks, time bombs, Trojan horses and bugs), infringe any copyright or other third party rights of any kind, be defamatory or otherwise transgress any laws of any country. ioGates reserves the right to remove from the Service any data that it reasonably believes contains a computer virus of any kind, infringes any copyright or other third party rights of any kind, is defamatory or otherwise transgresses any laws of any country.

TERM AND TERMINATION

This Contract enters into force upon ioGates’ acceptance of the Customers application, se 2.2, and continues until terminated by either party with written notice of 30-days to the end of a month.

Termination of this Contract for any reason shall be without prejudice to the obligation of confidentiality.

DEFAULT

ioGates may, without limiting any of its rights and remedies against the Customer, terminate the Customer’s and all Permitted Users access to the Service and/or cease the procurement of any services in whole or in part at any time by notice in writing to the Customer in the event that:

the Customer shall have substantially breached of any Contract or of any other contract between the Customer and ioGates or the Customer or any Permitted User shall have breached Contract with ioGates and/or ioGates’ terms of use of the Service; or

the Customer shall have failed to make payment of any sum due to ioGates.

If one or more of the following events occur with regard to any of the parties to the Contract the other party shall, by presenting such request in writing, be entitled to terminate the Contract in whole or in part without notice.

The said events are the following:

1. Appointment of a trustee or a receiver for all or any part of the assets of a party.
2. A petition in bankruptcy or insolvency against a party.

3. Assignment of a substantial part of the assets of a party for the benefit of its creditors.
4. Attachment of a substantial part of the assets of a party.

5. Dissolution or liquidation of a party.

6. Substantial change in the ownership, management or control of a party.

7. Substantial default of the obligations of these terms and conditions by a party.

In the event of any default or major breach of these terms and conditions by either party hereto, the other party shall notify the other party hereto immediately when the default of breach comes to his knowledge, if he wants to exercise any rights related hereto. If such default or breach is not remedied without delay this Contract shall be terminated without notice in whole or in part as per request of the non-defaulting party.

Termination owing to the Customer’s default shall be effective to relieve ioGates of any obligation to complete the procurement of any services that remain outstanding at the date of termination.

Termination owing to the Customer’s default shall entitle ioGates to delete any and all Archived Data which the Customer shall have placed in the Archive or which ioGates shall have placed in the Archive on behalf of the applicable Customer and the deletion of all data in each of the Customer’s Workspaces. Archived Data and any other materials belonging to the Customer or which the Customer shall have placed in ioGates’ custody shall only be returned to the Customer on discharge in full of all sums due to ioGates and on payment of any retrieval or transfer charges that ioGates may apply.

SUSPENSION

ioGates may at any time without notice to the Customer and without liability to the Customer, any Permitted User or any third party suspend any part of the Service and/or the availability of the Site and/or cease to make available any services in the event that:

ioGates needs to carry out maintenance, updates and/or corrections to the Service or the Site;

ioGates is obliged so to do to comply with an order, instruction or request of any government or other competent administrative authority.

In the event procurement of the Service or the performance of any obligation is prevented, delayed, or in any way interfered with by an action or ruling of any government, war, industrial dispute, strike, breakdown of machinery or equipment, accident, fire or by any other cause beyond ioGates’ control ioGates shall have no liability to the Customer or any third party resulting from such non procurement or performance.

DELAYS

Delays by the ioGates

All additional direct expenses reasonably incurred by the Customer by reason of the Customer being prevented in receiving the Service or services from ioGates due to delays attributable to ioGates’ gross negligence shall be reimbursed by ioGates to the Customer.

Under no circumstances shall ioGates be liable for any consequential loss including damages for loss of profits, business interruption or other indirect pecuniary loss of any kind.

Delays by the Customer

If ioGates is prevented or delayed from performing the Service or services in the manner and at the time stated by reason of any act or omission of the Customer or a Permitted User, the Customer shall have no right to damages or to cancel any order for any services for ioGates’ failure to meet any delivery time stated and the delivery time shall be amended forthwith, and the Customer shall pay to ioGates all reasonable costs and charges sustained or incurred by ioGates (at ioGates’ then current rates and all reasonable expenses) for additional time and materials expended by ioGates as a result of such delay.

FORCE MAJEURE

Neither party shall be responsible or liable to the other party hereunder for failure or delay in performance of this Contract, due to any war, fire accident or other casualty or any labour disturbance or Act of Good, natural catastrophe or Acts of the Public enemy or any other contingency beyond such parties control. In the event of the applicability of this article, the party affected by such force majeure shall use its best effort to eliminate, cure and overcome of such causes and resume performance of its obligations.

IOGATES’ LIABILITY

ioGates shall be liable for damages only to the extent that it is proven that the damage is caused by ioGates’ gross negligence.

ioGates makes no representation or warranty with regard to the Service or services and shall not be liable to The Customer for any special or consequential damages, including but not limited to loss of revenue and/or profits and ioGates shall not be liable for any injury or damage to The Customer, The Customer’s properties, business, employees, agents, or The Customer’s customers in any way related to or arising out of the Service or services or the use or implementation hereof.

Unless otherwise expressly agreed in writing, ioGates gives no warranties, representations, conditions, or guarantees of any kind whatsoever, either express or implied by law (in contract or tort or otherwise) or custom, including, but not limited to those regarding merchantability, fitness for purpose, correspondence to sample, title, design, condition, or quality without limiting the above, ioGates does not warrant that the procurement of ioGates’ Service or services shall be free from interruption or errors.

Where materials are supplied or specific instructions are given by the Customer (or any Permitted User, on its behalf) ioGates shall have no liability caused by defects in or the unsuitability of such materials so supplied or by ioGates’ adherence to such specific instructions.

ioGates shall not be responsible for and shall have no liability to the Customer or any third party for:

any loss or damage that results from any person gaining unauthorised access to the Service;

use or disclosure of any data obtained by any third party as a result of the same having gained unauthorised access to the Service or having intercepted any data as it passes between the Customer, ioGates or any third party (to include any Partner);

any loss or damage resulting from any malfunction of or the introduction of any Bugs to the Customer’s equipment, software or links as a result of using the Service and/or any Partner Services.

The Customer acknowledges that use and availability of the Service and the transfer of data by Direct Delivery involves reliance upon third party data carriers over which ioGates have no control and accordingly (notwithstanding and without limiting condition 10.1) ioGates shall not be responsible for and shall have no liability to the Customer or any third party for:

the loss or corruption of any data transferred by Direct Delivery;

the unavailability of the Service;

the Customer’s and any Permitted User’s inability to access or to use the Service;

any delay in accessing any data uploaded to the Service and/or the receipt by the intended recipient of any data transferred by Direct Delivery.

howsoever any of the foregoing shall have been caused.

In the case of the transportation of any data in any physical media, any packaging supplied by ioGates will, unless otherwise expressly agreed, provide adequate protection under normal conditions of delivery of usual duration by courier or, if applicable, by air transport. If the Customer or the intended recipient fail to take delivery on the agreed delivery date or, if no specific delivery date has been agreed, when the physical media is ready for despatch, ioGates shall be entitled to store the physical media and to charge the Customer the reasonable costs of so doing. Notwithstanding condition 10.1, ioGates shall be under no liability in respect of any loss or damage or otherwise arising as a result of damage to or the loss or destruction of such physical media.

If for any reason, ioGates becomes liable to the Customer or any other party for direct or any other damages for any cause whatsoever, and regardless of the form of action (in contract or tort or otherwise), incurred in connection with this Contract then the aggregate liability of ioGates for all damages, injury, and liability incurred by the Customer and all other parties in connection with the ioGates Service or services, shall be limited to an amount equal to the amount actually paid by the Customer for the Service and any other separately quoted for services during the immediately preceding 3 months period.

Under no circumstances shall ioGates be liable for any consequential loss including damages for loss of profits, business interruption or other indirect pecuniary loss of any kind.

The Customer acknowledges and agrees that the Customer cannot bring or initiate any act or proceeding against ioGates arising out of this Contract or relating to the ioGates Service or services more than 6 months after the cause of action has arisen.

PRODUCT LIABILLITY

For material damage or personal injury which is due to defects from the delivered Service or services or goods (product liability) ioGates is only liable for direct loss to the extend that liability according to Danish law is levied on a manufacturer.

ioGates is under no circumstances liable for damage to commercial property of the Customer or third party unless it is proven that the damage is caused by ioGates’ gross negligence.

ioGates is not liable for consequential loss, loss of profits or other indirect losses.

To the extent ioGates might incur products liability in relation to a third party, the Customer shall indemnify ioGates to the same extent as ioGates’ liability is limited in accordance with the three preceding paragraphs of this condition.

In the event that any third party makes a claim against either party concerning liability in damages under this condition, such party shall forthwith notify the other party hereof.

THE CUSTOMER’S LIABILITY

The Customer shall indemnify and hold ioGates harmless from and against:

all claims or proceedings taken against ioGates by any Permitted User, any third party including any client of the Customer in respect of personal injury or damage to property caused by or arising out of any act or omission of ioGates’ in the course of carrying out the Customer’s specific instructions or a Permitted User on the Customer’s behalf;

all claims or proceedings taken against ioGates arising out of the acts and/or omissions of the Customer, the Customer’s agents or sub-contractors, any Permitted User, whether negligent or otherwise;

any loss or damage suffered by ioGates or a third party caused by the actions or omissions of any person that gains unauthorised access to the Service, any Workspace and/or any Archived Data using a password issued to the Customer or a Permitted User;

any loss or damage suffered by ioGates or any third party caused by any Bugs introduced to the Site from the computer system of the Customer or a Permitted User;

all actions, claims, costs, charges, expenses and proceedings arising from or incurred by way of any data uploaded to the Service or which the Customer or a Permitted User shall require ioGates to provide copies of or which shall be transferred to any third party via the Service violating any copyright or other third party rights of any kind, being defamatory or otherwise transgressing any laws of any country or which is caused by or in connection with the Customer’s or any Permitted User’s use of the Service or any Partner Service.

INSURANCE

The Customer shall at all times maintain and keep effective insurance policies with reputable insurers and for adequate levels of cover which protect the Customer against any loss or liability which may be incurred or suffered by the Customer arising out of this Contract. Such insurance shall include insurance for any damage or loss for which ioGates are not liable pursuant to the conditions hereof, insurance which protects the Customer against any accidental loss, damage or destruction to any master tapes, film negative prints, sound tapes, video tapes or visual images or sound held in any media whilst in ioGates’ possession or control, uploaded to the Service or in transit whether via Direct Delivery or in any physical media. ioGates shall have no liability for any liability or loss which arises from any failure by the Customer to maintain and keep effective such insurances.

ENTIRE AGREEMENT

This Contract constitutes the entire agreement between the Customer and ioGates and without limiting any other procurement of this Contract, all other terms, conditions or warranties whatsoever are, to the maximum extent permitted by law, excluded and the Customer confirms that the Customer has not relied upon any representation whether oral or contained any literature in any medium which is not repeated in this Contract.

CONFIDENTIALITY

The parties acknowledge the importance of mutual confidentiality with regard to all aspects of the Project including know how, confidential and/or trade secret information.

The parties agree that they or their respective employees shall not use, divulge or disclose, directly or indirectly to any third party any proprietary or confidential information whatsoever concerning the Service or services.

The obligation of confidentiality as described in this article of this condition must be maintained during the term of this Contract as well as after its termination for whatever reason it is terminated.

AMENDMENTS

This Contract may not be varied or amended unless such variation or amendment is agreed in writing by a duly authorised representative of the Customer and ioGates.

WAIVER

No failure, delay, relaxation or forbearance on the part of ioGates in exercising any power or right under this Contract shall operate as a waiver or in any way prejudice such power or right unless agreed in writing by a duly authorised representative of ioGates.

HEADINGS

The subject headings of these terms and conditions are included for purposes of convenience only and shall not affect the construction or interpretation of any of its conditions.

USE OF NAME

ioGates shall have the free of charge right to utilise the Customer’s name and identifying logos in connection with publicising the availability of the Service unless the Customer makes a specific written request to the contrary.

The Customer shall not use ioGates’ name or any trading name or mark without ioGates’ prior written consent.

EXPORT

The Customer acknowledges and agrees that use of the Service may be subject to export control or like regulations which the Customer undertakes to ioGates that the Customer will comply with.

SEVERABILITY

If any condition as applied to either party or to any circumstance shall be adjudged by a court to be void or unenforceable, the same shall in no way affect any other procurement of this Contract or the validity or enforceability of this Contract generally.

NO AGENCY

Unless specifically provided, no contract between the Customer and ioGates shall operate to create an agency, joint venture or partnership between the Customer and ioGates.

SUBCONTRACTORS

ioGates shall be entitled to appoint one or more sub-contractors to carry out all or any of its obligations under any contract between ioGates and the Customer.

ASSIGNMENT

The Customer shall not be entitled to assign or sub-licence or otherwise dispose of the whole or any part of this Contract or its rights hereunder without ioGates’ prior written consent. Assignment of a controlling part of the Customer shall for purpose of this Contract be considered as an assignment.

APPLICABLE LAW & VENUE

This Contract is governed and construed in accordance with the laws of the Kingdom of Denmark.

The Venue for all disputes arising out of or in connection with this Contract, if not amicably settled between the parties shall be the venue of ioGates’ domicile in Denmark

Danish shall be the language during proceedings.

These terms and conditions were last revised November 2010