Terms and Conditions

Last Updated: 8/18/2016

1 - General Terms and Conditions

In order to use any products and/or services provided by Evoke Networks LLC (“Evoke Networks”), you (“Customer”) must first read and accept the terms and conditions of this agreement (“Agreement”). Submission of your order and logging in to manage your account constitutes acceptance of these terms and conditions.

1.1 - Purpose of Site

Evoke Networks, a Washington Limited Liability Company, provides content delivery services, specializing in the delivery of video and audio content to a local, national and/or global audience over the Internet. Evoke Networks’ services include, but are not limited to: the encoding of Customer's audio and/or video content into a streaming format, the hosting of Customer's content and related components on Evoke Networks’ network/systems, and giving the ability to the Customer to link to and distribute their content via Evoke Networks’ network. Evoke Networks may provide any other services, as necessary, for the operation of its business.

1.2 - Length of Agreement

Customer agrees the use of the Service is subject to Evoke Networks’ "Term of Agreement Policy."

1.3 - Evoke Networks Written Agreement

For special services, or customized solutions, an Evoke Networks Written Agreement may accompany these Terms and Conditions. If such document accompanies these Terms and Conditions, the terms of the Evoke Networks Written Agreement shall override any inconsistencies or contradictory Terms and Conditions that may arise between the two agreements.

1.4 – On-Demand Disk Space Allocation

Evoke Networks agrees, subject to the terms of this Agreement, to allow Customer to use and occupy Customer's Disk Space Allocation on Evoke Networks’ system. Subject to the terms of this Agreement, Evoke Networks agrees to provide Customer with those support services necessary to allow third persons to access and view Customer's content hosted on Customer's Disk Space Allocation as per the terms of this Agreement.

1.5 – Distributing Live and On-Demand Content

Evoke Networks shall provide Customer with all necessary information to distribute Customer’s content, either live or on-demand, to Customer’s intended audience. Evoke Networks shall use all reasonable commercial efforts to make Customer's content available for viewing by third parties 24 hours each day, seven days per week. Customer shall have the responsibility to notify Evoke Networks in the event content appears to be unavailable or not working properly.

1.6 - Encoding Customer's Content

Evoke Networks, upon Customer's request and subject to all payment requirements and any other conditions described herein, shall encode, through its own efforts and those of its sub-contractors, Customer's content into a streaming video and/or audio format. Customer shall provide Evoke Networks with a copy of the content to be converted in the format as mutually agreed upon by Evoke Networks and Customer. Customer should not provide Evoke Networks with the original of the content to be encoded and, in no instance, shall Evoke Networks be liable to Customer for direct damages for loss of, or other damage to, Customer's materials greater than the cost of the medium on which the materials were transmitted to Evoke Networks. Customer will receive a quote for the costs of encoding which must be signed and returned to Evoke Networks prior to commencement of service. Customers utilizing this service shall be bound by the terms and conditions of this Agreement. Customer shall retain all rights, including all trademark, licensing and copyrights, in both the original content as well as the encoded content.

Customer represents and warrants that materials Customer provides for encoding by Evoke Networks, and Evoke Networks' encoding of those materials as Customer requests, will not infringe upon, violate or misappropriate any patent, copyright, trade secret, trademark, contract, or any other publicity right, privacy right, or proprietary right of any third party. Evoke Networks shall not be liable for any such infringement, violation, or misappropriation, and Customer shall indemnify Evoke Networks against all losses and expenses, including for all attorneys' fees and other costs, relating to Customer's breach of that representation and warranty.

1.7 - Price and Payment

Customer agrees the use of the Service is subject to Evoke Networks’ "Price and Payment Policy" as defined in Section 3.

1.8 - Cancellation of Service

Customer agrees the use of the Service is subject to Evoke Networks "Cancellation Policy" as defined in Section 4.

1.9 - Acceptable Use

Customer agrees the use of the Service is subject to Evoke Networks’ "Acceptable Use Policy" as defined in Section 5.

1.10 - Service Level

Customer agrees the use of the Service is subject to Evoke Networks’ "Service Level Agreement" as defined in Section 6.

1.11 - Copyright and Trademark

Customer agrees the use of the Service is subject to Evoke Networks’ "Copyright & Trademark Policy" as defined in Section 8. Nothing in this Agreement shall be construed to grant Evoke Networks any right, title, or interest in or to any content of Customer other than those rights necessary for the sole purpose of enabling Evoke Networks to perform the services described herein or in any Evoke Networks Written Agreement, pursuant to the terms of this Agreement and/or such Evoke Networks Written Agreement.

1.12 - Privacy Policy

Customer agrees the use of the Service is subject to Evoke Networks’ "Privacy Policy" as defined at http://www.evokenetworks.com/about/privacy-policy/

1.13 - Abuse and Infringement Notification

Section 10 provides contact and detailed information on submitting notification of abuse, copyright or trademark infringement to Evoke Networks.

1.14 - Security and Integrity of Customer's Content

Evoke Networks provides best efforts to insure integrity and security of Customer's content, including the use of backup systems, secure servers, and restricted access to CRM and management systems. However, such procedures cannot guarantee complete security and integrity of content. Therefore, Evoke Networks makes no guarantee and assumes no liability for the security of any content on any system, including "secure servers." Customer agrees to maintain separate backups of any content outside of the backup systems that Evoke Networks has in place and Evoke Networks shall not be liable for the loss, or modification, of any Customer content due to any breach of security. Evoke Networks’ backup systems are reserved for Evoke Networks’ use and are not available to Customer for the purposes of requesting content whereby such missing or defective content is a result of circumstances not related to Evoke Networks’ system failures or breach of security.

1.15 - Disclaimer of Warranty

Evoke Networks warrants that services will operate substantially in conformance with the specifications depicted in their promotion. To the extent permitted by law, Evoke Networks disclaims all other warranties, either express or implied, including but not limited to the implied warranties of merchantability, non-infringement of third-party rights, and fitness for particular purpose. The duration of any statutorily required warranty period shall be limited to the term of the limited warranty.

1.16 - Limitation of Liability

Under no circumstances will Evoke Networks be liable to Customer for direct damages greater than the sum total of payments made by Customer for the use and occupancy of Customer’s space, or in the case of special services, including encoding services, the sum of payments made by Customer to Evoke Networks for the service for which damages are claimed. In no event shall Evoke Networks be liable for any indirect, incidental, punitive or other consequential damages (including, without limitation, lost profits) arising out of and in relation to this agreement even if advised beforehand of the possibility of such liability. Under no circumstances will Evoke Networks be liable to Customer for any marketing, advertising or promotional expenses, or any expenses related to the Customer’s use of Evoke Networks’ service, regardless of any event, including interruption of Evoke Networks’ service, or Evoke Networks’ removal of Customer’s content.

1.17 - Taxes

In the event that they are applicable, Customer shall be solely responsible for the payment of all sales, use and similar taxes relating to their use of Evoke Networks’ services.

1.18 - Governing Law

The laws of the State of Washington shall govern the validity, construction and performance of this Agreement.

1.19 - Arbitration

The parties agree to submit any dispute arising out of or in connection with this Agreement to binding arbitration in Washington before an arbitrator agreed to by both parties and subject to the rules of the American Arbitration Association. The parties agree that such arbitration will be in lieu of either party's rights to assert any claim, demand or suit in any court action, (provided that either party may elect either binding arbitration or a court action with respect to obtaining injunctive relief to terminate the violation by the other party of such party's proprietary rights, including, without limitation any trade secrets, copyrights or trademarks). Any arbitration shall be final and binding and the parties agree not to contest the enforceability of the arbitrator's order.

1.20 - Assignment and Account Ownership

Customer may not assign its rights or obligations arising under this Agreement without submitting a request to do so in writing, complete with original signatures, and without Evoke Networks’ prior written consent. Should ownership of an Evoke Networks’ Account be disputed between two or more parties, priority shall first be given to the original name on the account for which invoices are submitted, supported by the billing address. If ownership of an Account remains in dispute, Evoke Networks reserves the right to interplead the dispute to binding arbitration as depicted in these General Terms and Conditions in the state of Washington, and suspend service and withhold Customer's content until court action determines otherwise. Evoke Networks may assign its rights and obligations under this Agreement, but must provide written notice to Customer within 30 days of doing so.

1.21 - General Provisions

Both parties represent and warrant that they have full power (including corporate power) and authority to execute and deliver this agreement and to perform their obligations hereunder, and that the person (and company, if applicable) who accepts this agreement by checking the “I agree to the Terms and Conditions” box is duly authorized to enter into this agreement on behalf of the party.

1.22 - Amendment of Agreement

Unless an Evoke Networks Written Agreement specifies otherwise, Evoke Networks may amend this Agreement from time to time on an as-needed basis by placing an update of this Agreement online at Evoke Networks’ web site at this location or at any other location designated at said site. Any changes to this Agreement take effect upon the renewal date of the Agreement. Therefore, it is Customer's responsibility to monitor this Agreement on-line. If Customer does not agree with the terms and conditions of Evoke Networks, Customer must immediately cease the use of Evoke Networks’ service. Evoke Networks agrees to give written notice, via email to the primary email address on record, of any material changes that affect the length, pricing, privacy, or cancellation of this Agreement.

1.23 - Notices

Evoke Networks reserves the right to contact our users regarding important product or policy announcements and to satisfy legal requirements. All legal notices to Evoke Networks should be submitted to:

Evoke Networks
Attn: Legal
2916 NW Bucklin Hill RD, STE 231
Silverdale, WA 98383
 
Email: legal@evokenetworks.com

2. Terms and Conditions – Term of Agreement

2.1 - Standard Term/Length of Agreement

The Term/Length of this Agreement shall be month-to-month from the Effective Date of the Agreement with a minimum of one month or for the specified term of service as identified by the service that Customer subscribes to. Terms of any Evoke Networks Written Agreement between Evoke Networks and Customer shall override any inconsistencies or contradictory terms of this Agreement. For purposes of this Agreement, the "Effective Date" shall be the date on which Evoke Networks delivers notification of account or service activation to Customer with regard to Customer’s order.

3. Terms and Conditions – Price and Payment

3.1 - Price and Payment

Customer shall pay Evoke Networks monthly recurring fees, in U.S. Dollars, as indicated at http://www.evokenetworks.com or, if an Evoke Networks Written Agreement accompanies this document, as indicated by those terms, which include charges for use and occupancy of Customer's Disk Space Allocation. In addition to any recurring fees, Customer may be charged non-recurring fees as indicated at this same Web site, or as an Evoke Networks Written Agreement specifies.

Evoke Networks reserves the right to increase or decrease prices for its services upon the expiration of the Customer's contracted term. Price increases or decreases for any or all services shall be posted on Evoke Networks’ web site 30 days prior to taking effect. Evoke Networks agrees to submit written notice to the primary email address on record for the Customer at least 30 days prior to any price increases taking effect. Price decreases shall automatically reflect on Customer’s next billing cycle, without advanced notice, after such price decreases are posted online. This Agreement will automatically renew on a month-to-month basis at the month-to-month rate in effect at the time of the renewal unless canceled in writing or modified in writing by the Customer prior to the renewal date. Customer will receive an invoice for charges and payment is due upon receipt, unless otherwise stated. It is our policy to bill our clients on a monthly basis, and in the absence of any agreement or arrangement to the contrary, we expect to be paid no later than the due date stated on the invoice. Our monthly statements will be itemized as to each general activity.

3.2 - Method of Payment

Evoke Networks accepts payment by Credit Card and Check. Evoke Networks charges $25.00 for each check returned (rejected) by the bank. Evoke Networks accepts Visa, MasterCard, American Express and Discover.

3.3 - Late Payment

Customer balances are due no later than 12:00 PM Pacific Time, on the 25th day after the initial invoice date for service stated on the invoice. If a balance remains due 50 days after the initial invoice date for service, Customer's account shall be suspended for service. If a balance remains due 75 days past the initial invoice date for service, Customer's account shall be submitted to Evoke Network’s Collection Agency for processing, as described in 3.4. Evoke Networks will make reasonable efforts to notify Customer, in advance, of pending late fees, account suspension and account submission to Collection Agency, but Evoke Networks’ failure to provide notice will not prevent Evoke Networks from exercising any of its rights regarding past due amounts. Evoke Networks will make reasonable efforts to preserve Customer’s content off-line, for up to 75 days past the initial invoice date for service. If Account Balance is not settled, Evoke Networks reserves the right to destroy the content and re-allocate space to other Customers.

3.4 - Collection Agency

Customer Balances (Amounts) past due by 75 days are subject to submission to Evoke Networks’ Collection Agency. Customer Accounts will incur a Collections Service Fee of $25.00 (Twenty U.S. Dollars). Customer will also be liable for additional further collection costs.

3.5 - Credit Card Chargebacks

Anytime a Chargeback Request is received from our Merchant bank, Evoke Networks reserves the right to immediately suspend Customer’s account until the Chargeback Request has been formally resolved between Evoke Networks and the Merchant Service Authority. This process may take up to, and possibly more than, a week. If Customer is disputing a billing error, Evoke Networks encourages Customer to first contact Evoke Networks’ Customer Service to resolve any discrepancies to avoid having Customer’s account suspended upon notification of a Chargeback. Evoke Networks reserves the right to refuse any additional service to Customer while a Chargeback Notice is pending investigation by the Merchant Service Authority.

3.6 - Disk Space and Data Transfer Pricing

Disk Space and Data Transfer rates are priced on a usage basis. Data Transfer measurements are based on Greenwich Mean Time (GMT) while disk space is priced based on allocation. Pricing is based on combining disk space allocation and monthly data transfer (in Gigabytes, “GB”). Customers can lower their price per GB by committing to minimum levels of monthly data transfer and term contractual periods. If the combined disk space allocation and monthly data transfer ends up being less than the monthly minimum commitment assigned for that rate plan, then the monthly minimum will be billed instead of actual usage.

In the absence of an Evoke Networks Written Agreement, all services are priced according to the standard price-per-GB pricing. For calculation purposes, Evoke Networks uses 1024 as a multiplier:

1024 Bytes = 1 Kilobyte (“KB”)
1024 KB = 1 Megabyte (“MB”)
1024 MB = 1 Gigabyte (“GB”)
1024 GB = 1 Terabyte (“TB”)

For customers upgrading between rate plans, the upgrade shall become effective as of the beginning of the current billing cycle, which is the first of the month during the month that the upgrade occurs.

For customers downgrading between rate plans, the downgrade shall become effective as of the first calendar day following the end of the existing Service Term. For rate plans with a Service Minimum of one month, then the downgrade shall become effective as of the first of the next calendar month.

3.7 - Refund Policy

Accounts cancelled/terminated by Evoke Networks for violating our Terms and Conditions of Service do not qualify for any refunds. For accounts cancelled/terminated by Customer in compliance with our Terms and Conditions, Evoke Networks will refund any due credit and/or overpayment back to Customer via either a company check or credit back to your bank account/credit card within one calendar month of account closure. Evoke Networks will be the sole arbiter as to how the refund should be completed.

4. Terms and Conditions - Cancellation

4.1 - Cancellation of Service by Evoke Networks

Evoke Networks reserves the right to cancel the Customer's account should the Customer fail to adhere to the terms of this Agreement. Should cancellation of an account occur, Evoke Networks will reimburse client any unused fees (prorated daily), after Evoke Networks has determined, in its own discretion, that all charges associated with the account have been satisfactorily paid. Upon request of Customer, Evoke Networks shall return all Customer materials. Evoke Networks reserves the right to withhold fees, up to the total of any charges associated with the account that have not been satisfactorily paid, if legal action is pending against Evoke Networks for the misuse of the account or if Evoke Networks reasonably believes legal action may be brought against Evoke Networks. Under such conditions, Evoke Networks may withhold such fees until it has been determined that any legal action brought against Evoke Networks has been satisfactorily resolved and all charges have been satisfactorily paid.

4.2 - Cancellation of Service by Customer

Customer shall have the right to terminate this Agreement as per 4.3, unless an Evoke Networks Written Agreement specifies otherwise. Evoke Networks shall reimburse client any unused fees (prorated daily), after Evoke Networks has determined, in its own discretion, that all charges associated with the account have been satisfactorily paid. Prior to cancellation of service, Customer is responsible for removing their materials from their allotted space on Evoke Networks’ system and Evoke Networks will not be responsible for storage and preservation of Customer's materials upon receipt of request for cancellation. Evoke Networks reserves the right to withhold fees, up to the total of any charges associated with the account that have not been satisfactorily paid, if legal action is pending against Evoke Networks for the misuse of the account or if Evoke Networks reasonably believes legal action may be brought against Evoke Networks. Under such conditions, Evoke Networks may withhold such fees until it has been determined that any legal action brought against Evoke Networks has been satisfactorily resolved and all charges have been satisfactorily paid.

4.3 - Effective Date of Cancellation

Upon receipt of written notice, as defined in section 4.4, from Customer, followed by written acknowledgement from Evoke Networks to cancel the service, the Effective Date of Cancellation shall be end of the current billing cycle.

4.4 - Definition of “Written Notice” for Cancellation

Customer agrees to submit notification of Cancellation of service to Evoke Networks by a) by submitting written notice by postal mail to Evoke Networks, b) by submitting written notice via e-mail to Evoke Networks from an authorized Customer contact, or c) by submitting written notice by facsimile to Evoke Networks. Customers electing to submit notice of Cancellation by postal mail or facsimile shall submit such notice to the address and facsimile stated in Section 1, General Terms and Conditions of Use. Customer agrees that submitting a notice of Cancellation by telephone is an unacceptable form of submitting notice of Cancellation to Evoke Networks, and that service charges may continue to apply until Evoke Networks has received the proper notice of Cancellation.

5. Terms and Conditions – Acceptable Use

5.1 - Content of Customer's Media.

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

5.2 - Acceptable Uses

This Agreement is designed to help protect Evoke Networks’ customers and the Internet community from irresponsible or illegal activities. In the event that Customer violates this Agreement through improper use of the service, as depicted in Section 5.3 below, Evoke Networks reserves the right to suspend or terminate the service without notice. Evoke Networks shall make reasonable efforts to advise Customer of the inappropriate behavior and offer any corrective action necessary. Evoke Networks reserves the right to immediately terminate its service to Customer for any flagrant or repeat violations of this Agreement.

5.3 - Non Acceptable Uses

Incidents that may cause the account to be terminated include, but are not limited to:

1. Harassment: using the service to threaten or harass or promote terrorism.
2. Using the service for any purpose other than which it is intended.
3. Using the service for submission, generation or inclusion of unsolicited bulk email or other forms of email abuse (i.e. SPAM). Failure to respond to a SPAM notice shall also constitute grounds for termination of account.
4. Attempting to impersonate any person, using forged headers or other identifying information in a defamatory way.
5. Violation of Trademark and/or Copyrighted material. Upon receipt of a compliant legal notice alleging that copyright infringement is occurring, Evoke Networks will remove said material and provide Customer with a copy of the compliant notice of Copyright infringement. Said material shall remain removed from Evoke Networks’ system until Customer has provided the designated agent at Evoke Networks a compliant Counter Notification. Upon receipt of the compliant Counter Notification, the law requires Evoke Networks to submit a copy of the Counter Notification to the complaining party with notice that Evoke Networks will replace or re-enable access to the allegedly infringing material in ten business days. Then, ten to fourteen business days after receiving the Counter Notification, Evoke Networks will replace or re-enable access to the allegedly infringing material, unless the complaining party has notified Evoke Networks’ designated agent that a court action relating to the materials in question has been filed in order to stop the alleged copyright. Accounts belonging to repeated infringers, under appropriate circumstances, will be terminated. For further information, see Section 9 – Infringement and Abuse Notifications.
6. Uploading any data or executable computer programs containing a virus or other malicious code which may be deemed as viral, or may cause a disruption to the service or another computer.
7. Untimely payment of any and all amounts due.
8. Any action that violates the laws of applicable local, state, federal or international governmental bodies.
9. Sharing the account with anyone or re-selling the service without express written permission from Evoke Networks.
10. Exceeding a maximum of 1000 files and/or folders in a single directory (folder).
11. Exceeding 1 GB of data transfer in any free trial service.
12. Signing up for another account after suspension of a prior account for nonpayment unless the balance on the prior account has been paid in full.
13. Signing up for another account after suspension of a prior account for non-acceptable use, unless prior written permission is obtained from Evoke Networks.

Customer will not register for or use any free trial account (defined as the “Trial Account”) for any purpose other than making a good faith evaluation of whether Customer wishes to purchase one or more of Evoke Networks’ services. Registering for or using an trial account for any purpose, including without limitation to provide commercial benefits to Customer or others (other than as a preliminary step that results in the purchase of one or more of Evoke Networks’ services), repeatedly registering for trial accounts to avoid paying fees and costs associated with Evoke Networks’ services, or otherwise abusing a trial account, constitutes a breach of this Agreement, trespass upon Evoke Networks’ Web site, and conversion of Evoke Networks’ services and resources.

Evoke Networks will cooperate with any and all appropriate legal authorities in investigating claims of illegal activity, including, but not limited to illegal transfer or use of copyrighted material or other illegal activity. Evoke Networks reserves the right to monitor or view material uploaded by Customer onto Evoke Networks’ system at any time for the purpose of ensuring compliance with this Agreement.

5.4 - Acceptable, But Not Suitable Uses For Customer or Technical Support

In some cases, Customer’s content may not violate Evoke Networks’ “Acceptable Use” Policy, but yet be considered unsuitable for viewing or providing support in a professional environment shared by Evoke Networks’ employees. Such content (hereinafter deemed “Unsuitable Content”) may be offensive, vulgar, excessively provocative, violent, of an Adult nature, contain nudity, unsuitable language, or other nature that warrants the content unsuitable for viewing or listening.

While it is not Evoke Networks’ policy to exercise censorship and remove content from our service that does not violate Evoke Networks’ “Acceptable Use” Policy, any content that is considered unsuitable for viewing will NOT be played, viewed, encoded, captured, digitized, handled or otherwise, displayed in any way, by any Evoke Networks’ employee. All employees of Evoke Networks are permitted to use their own discretion in determining and rejecting content that is unsuitable for viewing or listening to for the nature of providing Customer Service or Technical Support. If employees encounter a Customer requesting support for such content, Evoke Networks’ employees are required to notify Customer that suitable content for viewing must be uploaded into the account for any support to be made available, and only for suitable content, and that no support or customer service will be provided for unsuitable content.

If Evoke Networks receives an order or a shipment for the purposes of preparing any content for streaming, including, but not limited to digitizing or encoding, that should be unsuitable, whether discovery of such content is made prior to performing the service, or during the course of performing the service, such service shall cease immediately. Evoke Networks will then return the content, or at the discretion and sole determination by Evoke Networks’ management, refer the Customer to an independent contractor for completion of services.

5.5 - Receipt of Copyright or Trademark Infringement Notification

If Evoke Networks receives a notification of claimed copyright or trademark infringement with regard to Customer’s content, whereby the notification includes: a physical or electronic signature of the owner (or person authorized to act on behalf of the owner) of an exclusive right that is allegedly infringed; specific identification of the copyrighted, trademark or patented work claimed to have been infringed, or if multiple works are covered by a single notification, a list of each work claimed to have been infringed; information related to the work(s) reasonably sufficient for Evoke Networks to promptly locate the work (e.g. title of work, URL location) within Evoke Networks’ Web site, or that of a third party Web site; information reasonably sufficient to permit Evoke Networks to directly contact the complaining party, such as a complete name and address, telephone number and/or email address; a statement that the complaining party has a good faith belief that use of the work(s) in the manner complained of is not authorized by the copyright owner, its agent or the law; a statement requesting that Evoke Networks take a specific act with respect to the alleged infringement (e.g., removal, access restricted or disabled; and a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, then Evoke Networks will take appropriate actions under the Digital Millennium Copyright Act and/or other applicable intellectual property laws, which may including disabling or removing the work(s) from service and/or suspend or terminate Customer’s service and withhold Customer’s content until the matter has been fully resolved by all parties and such resolution has been submitted in writing to Evoke Networks on terms mutually acceptable to Evoke Networks, or if court action of legal jurisdiction determines otherwise.

5.6 - Disk and Data Transfer/Bandwidth Utilization

By accepting this Agreement, Customer agrees to be bound by the service description applicable to its account. Evoke Networks reserves the right to remove material and/or terminate or suspend the account due to any violation of bandwidth or utilizations limits that Evoke Networks deems inappropriate or excessive. Repeat violations of the allotted disk and/or bandwidth utilization may subject account to termination. Customer agrees to pay for all bandwidth and/or disk usage that exceeds their allotment based on the current charges depicted as part of their service.

 While Evoke Networks implements security mechanisms to prevent disk space over utilization and data transfer/bandwidth monitoring, Evoke Networks cannot insure that such security, monitoring and notification mechanisms will work at all times without system failure. Therefore, Evoke Networks is not responsible to notify Customer of utilization and it is the Customer's responsibility to ascertain these conditions and to notify Evoke Networks if Customer suspects a failure may have occurred. Evoke Networks will make reasonable efforts to keep client informed of overages exceeding Customer's allotment by 200% or more but cannot guarantee such notification. Evoke Networks advises that Customer anticipate the volume of users likely to view their content in a given month and multiply that by the size of individual files to approximate data transfer usage per month.

5.7 - Music License Fees

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

5.8 - Modification of Media

In the event Customer wishes to modify, or otherwise change, the media on their allotted disk space, Customer shall have the privilege of doing so as long as compliance with the Terms and Conditions of this Agreement is met, and Customer does not exceed their allotted disk space.

6. Terms and Conditions – Service Level Agreement

6.1 - Service Availability – 99.0% Uptime Guarantee

Evoke Networks uses best efforts to keep its service up and running. However, Evoke Networks cannot and will not guarantee 100% uptime of its service. Evoke Networks service is guaranteed to be available and capable of forwarding IP packets 99.0% (ninety-nine percent) of the time, as averaged over the life of the Service Period, as defined in Evoke Networks’ Term of Service Policy. Downtime shall consist of packet loss, which is sustained in excess of 50% for 10 consecutive minutes. If Evoke Networks sustains downtime (a disruption of service) of a duration of more than 7.2 hours (1% of 30 days, or seven hours and twelve minutes) and in aggregate, during a Service Period, as defined in Evoke Networks’ Term of Service Policy, then Customer may elect to cancel the Service/Agreement, and Evoke Networks agrees to reimburse Customer, on a daily pro-rated basis upon request, any fees paid to Evoke Networks for which service was unavailable and/or not rendered. For the calculation, Evoke Networks assumes a total of 30 Days within a Service Period, which provides a total of 720 hours. Evoke Networks guarantees 99.0% of this time period, or 712.8 hours (712 hours and forty-eight minutes) to be free of downtime, as defined in this paragraph.

Customer shall remain liable to Evoke Networks for all other fees associated with the service, including one-time encoding fees and any excess bandwidth usage fees incurred prior to the termination of the service. This guarantee shall not apply for disruption of service to end-user that is due to network congestion on the Internet or other related disruptions on the Internet that are not related to Evoke Networks’ service. It is very possible that Evoke Networks’ services are fully operational, but the end-user's access to the media is disrupted by means of independent backbone carrier issues.

Customer must provide information supporting the claim of this Service Level Agreement violation such as Traceroute and/or PING data produced during the time of the incident.

6.2 - Notice of Violation of Service Level Agreement

To terminate the contract, Customer must give written notice within four business days of violation of this Service Level Agreement at:

Evoke Networks
Attn: Customer Service
2916 NW Bucklin Hill RD, STE 231
Silverdale, WA 98383

Email: customerservice@evokenetworks.com

7. Terms and Conditions - Copyright and Trademark

7.1. Copyright

The entire content of Evoke Networks’ services, including its Web site, is copyrighted, and all rights are reserved.

7.2. Trademark Reservation of Rights

Evoke Networks LLC (hereinafter referred to as “Evoke Networks”), and/or its licensors, 2009-2010, is the exclusive owner of all right, title, and interest in the Evoke Networks’ Marks and Evoke Networks’ Logos. No person or entity may reproduce or use (or authorize the reproduction or use of) the Evoke Networks’ Marks or the Evoke Networks’ Logos in any manner other than expressly authorized by Evoke Networks. Unauthorized use of Evoke Networks’ Marks or Evoke Networks Logos is strictly prohibited. “Evoke Networks,” “EvokeNetworks.com,” are the trademarks of Evoke Networks LLC.

7.3. Copyright and/or Trademark Infringement Notification Procedure

For information on submitting notification of copyright, trademark, or patent infringement, or for any notification of abuse, please review our notification procedures and guidelines depicted in Section 8, Abuse and Infringement Notification.

8. Terms and Conditions - Abuse and Infringement Notification

8.1 - Copyright, Trademark and Patent Infringement and Abuse Notification Procedure

Evoke Networks’ designated agent for notice of claims of copyright, trademark, and/or patent infringement and/or abuse related to Evoke Networks, EvokeNetworks.com, Evoke Networks’ properties, customers, employees, associates, affiliates, or referrers is as follows: Designated Registered Agent For Receiving Notices: Evoke Networks Attn: Legal Affairs 2916 NW Bucklin Hill RD, STE 231, Silverdale, WA 98383 Email: legal@evokenetworks.com

8.2 - Notification of Copyright Infringement

To function as an effective notice, The Digital Millennium Copyright Act (“DMCA”) requires that all notifications of Copyright Infringement must be in writing and include substantially the following elements:

1. A physical or electronic signature of the owner (or person authorized to act on behalf of the owner) of an exclusive right that is allegedly infringed;
2. Specific identification of the copyrighted, trademark or patented work claimed to have been infringed, or if multiple works are covered by a single notification, a list of each work claimed to have been infringed;
3. Information related to the work(s) reasonably sufficient for Evoke Networks to promptly locate the work (e.g. title of work, URL location (complete Web site address) within Evoke Networks’ Web site, or that of a third party Web site, etc.);
4. Information reasonably sufficient to permit Evoke Networks to directly contact the complaining party, such as a complete name and address, telephone number, and an email address;
5. A statement that the complaining party has a good faith belief that use of the work(s) in the manner complained of is not authorized by the copyright owner, its agent, or the law;
6. A statement requesting that Evoke Networks take a specific act with respect to the alleged infringement (e.g., removal, access restricted or disabled); and
7. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Upon receipt of proper notice of alleged infringement, Evoke Networks will forward a copy of the notice to the alleged infringing Customer and act expeditiously to remove, or disable access to the allegedly infringing material. This is not discretionary and does not depend on an analysis of whether the accused material actually constitutes copyright infringement. This is a requirement of the DMCA which states that a service provider shall not be liable to any person for any claim based on the service provider's good faith in disabling access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.

If Evoke Networks receives a compliant “Counter Notification” as described by the DMCA, from an affected Customer, Evoke Networks must promptly provide a copy of the “Counter Notification” to the complaining party that provided the notice of the alleged copyright infringement, and inform that party that Evoke Networks will replace or re-enable access to the allegedly infringing material in ten business days. Ten to fourteen business days after receiving the “Counter Notification,” Evoke Networks must replace and re-enable access to the removed material, unless the complaining party has notified Evoke Networks’ copyright notice agent that he or she has filed a court action relating to the materials in question in order to stop the alleged copyright infringement.

To function as an effective “Counter Notification,” The DMCA requires that all such “Counter Notifications” must be in writing and include substantially the following elements:

1.  Identification of the material that Evoke Networks removed or disabled access to, and the location at which it previously appeared.
2. A statement, made under penalty of perjury, that the user has a good faith belief that Evoke Networks removed that material due to mistake or misidentification of the material to be removed or disabled.
3. The Customer's name, address, and telephone number.
4. A statement that the Customer consents to the jurisdiction of its local Federal District Court (or, for a user outside of the United States, a Federal District Court where Evoke Networks is located), and that the user will accept service of process from the person who provided the notice of alleged copyright infringement (or an agent of that person).
5. The Customer's physical or electronic signature.

8.3 - Notification of All Other Claimed Infringement and or Abuse

All other notification of claimed infringement, violation or abuse should be submitted to the designated Evoke Networks Contact depicted in Section 8.1, with sufficient information to properly identify and research the claimed infringement, violation and/or abuse and to properly respond to the person or entity submitting the notification. This includes notifications of claimed infringement related to any of Evoke Networks’ patents, marks and/or logos or to any content, which includes any and all text, graphics, images, illustrations, video, audio, animation, designs or logos, of Evoke Networks or that of Evoke Networks’ Customers, whether displayed on Evoke Networks’ Web site, or on the Web site or email of a third or independent party, should be a written communication addressed to the designated agent above.

8.4 - General Information Regarding Evoke Networks’ Services

Evoke Networks provides content delivery services for customers wishing to distribute their own audio, video and multimedia over the Internet. Like an Internet Service Provider that provides Web site hosting services for their customers, Evoke Networks provides media hosting services for Evoke Networks’ Customers. Given that Evoke Networks may host millions of media files at any given time, Evoke Networks cannot and does not actively monitor, endorse, approve, screen, or consider the Customer's material nor does Evoke Networks exercise any editorial control over the content of any material that Evoke Networks’ Customer uploads into Customer's account at Evoke Networks. As a Customer may activate Evoke Networks’ services in real-time over the Internet, gaining immediate access to the service, Evoke Networks is limited in its time-to-action to block usage of the service to a Customer, and limited in its ability to block a Customer if such Customer re-subscribes to Evoke Networks’ service under a unique identification. Customers of Evoke Networks may display Customer's content on Customer's own Web site, the Web site of a third party or that via e-mail. Evoke Networks’ policy is to fully comply with the Digital Millennium Copyright Act with respect to all claims of infringement. This includes the right to remove any/or all of Customer's material from Evoke Networks’ system, or to suspend the Customer's service, that are, in Evoke Networks’ discretion, potentially illegal, a violation of Trademark and/or Copyright, or may subject Evoke Networks to liability, or violate Evoke Networks’ Acceptable Use Policy.