Virtual Filing Room Agreement

Recitals

This agreement serves between MPD Global and Tuesday Productions. It covers the use by Tuesday Productions of the “Virtual Filing Room” (http://vfr.mpdglobal.com) as hosted by MPD Global. This agreement is considered to be binding for both parties, and is a duplication of a paper copy both parties will have signed upon agreement of this document.

Mark Dotson
MPD Global
3733 Montery Pines St. Apt F101
Santa Barbara, CA 93105
(805) 991-9719
TDD Enterprises DBA 
Tuesday Productions
11665 Avena Place, Suite 101
San Diego, CA 92128

Ownership & Copyright

MPD Global is the sole owner of the “Virtual Filing Room.” This ownership extends to all source code, database structures, techniques and development involved with the creation of the “Virtual Filing Room.” MPD Global reserves the right to modify the Virtual Filing Room to accommodate other projects or clients and to otherwise use and market the Virtual Filing Room as seen fit.

Tuesday Productions is the sole owner of any content they provide and upload, generate, and otherwise create in the course of using the Virtual Filing Room.

Security

MPD Global will provide a secure and trusted environment in which to support the Virtual Filing Room. The Virtual Filing Room uses SSL Encryption at all times to verify that all data (logins, passwords, customer information, etc.) is protected. MPD Global will ensure that the server hosting the Virtual Filing Room is property patched, up to date, and otherwise secure from any security concerns on a system-wide level.

Uptime Goal

MPD Global shall use commercially reasonable efforts to make MPD Global’s Systems and the Service available 98% of the time (the “Uptime Goal”). The Uptime Goal shall exclude the duration in time of any temporary shutdowns due to scheduled maintenance (which will not exceed in the aggregate ten (10) hours per month), telecommunications or power disruptions caused by third parties, and any other causes beyond MPD Global’s reasonable control. Any failure of MPD Global to satisfy the Uptime Goal shall not constitute a breach of this Agreement.

Disasters and Disaster Recovery

A “disaster” or “outage” is defined as happening within normal business hours. (M-F, 8am - 5pm, PST) Scheduled outages for normal system maintenance will be outside of normal business hours, and will involve advance notification of this planned downtime.

In the case of complete system failure (ie, complete failure of servers housing production VFR system) then MPD Global will bring on a backup system to use as an interim solution. In the event of this rare occurrence of extended downtime, MPD Global will provide updates to the status of operations. A backup e-mail address of “mdotson@dmglobal.net” which is on an independent server (outside of MPD Global operations) should be used as the primary method of contact should MPD Global operations have an unscheduled downtime. Additionally, updates can be retrieved by calling MPD Global’s office line at 805-692-8994. Updates will be posted to this message system, or a cell phone number will be provided so you can get up to date information from a MPD Global representative in person. Phone calls will be returned within a maximum of an hour.

During and after a Disaster or Unscheduled Downtime, MPD Global will provide Tuesday Productions:

  1. An estimated date and time of return of service (updated as more information becomes available as to the nature of the disaster)
  2. Reason for the Unscheduled Downtime.
  3. Once service is returned, a recap of what happened, and what steps will be taken in the future to prevent a recurrence.

MPD Global’s servers are redundant servers, and failure is rare. However, as with any computing devices, problems do occur. Thus MPD Global will create nightly backups of all files associated with the Virtual Filing Room. An “off-site backup” will also be performed each month, insuring that if a catastrophe should occur, a backup of the Virtual Filing Room will exist at an off-site location, should the Unscheduled Outage extend for over a single 8 hour period.

MPD Global will provide Tuesday Productions with copies of any and all data (database dump, copies of the raw image files, etc.) at any time Tuesday Productions requests; requests not to exceed twice a month. Please note that this data dump will NOT include the source code for the VFR, it will only include the data. (See Code Escrow section below for source code release details)

Charges & Costs

MPD Global will charge Tuesday Production a usage fee of two hundred dollars ($200.00 USD) a month for the use and maintenance of the Virtual Filing Room. “Maintenance” includes patching and general upkeep of the project, but does NOT include any recovery or repair due to user error. (IE, deleting the wrong file) MPD Global will charge fifty dollars ($50.00 USD) an hour for all circumstances outside of normal operation and maintenance of the Virtual Filing Room. This charge will be done hourly, rounding up to the next whole hour.

Tuesday Productions agrees to pay to MPD Global’s service fees in accordance with this agreement. All fees shall be billed by MPD Global in advance of providing access to the Virtual Filing Room on a quarterly basis. All charges are considered valid unless disputed via e-mail or phone within ten (10) days of the invoice date. Tuesday Production’s failure to fully pay any fees and taxes within ten (10) days after the applicable due date will be deemed a breach of this Agreement, justifying MPD Global’s suspension of its performance of the Virtual Filing Room and, in MPD Global’s sole discretion, termination of this Agreement. Any termination by MPD Global for Tuesday Production’s failure to pay will not relieve Tuesday Productions from paying past due fees. In the event of collection enforcement, Tuesday Productions shall be liable for any costs associated with such collection, including, but not limited to, reasonable attorneys’ fees, court costs and collection agency fees.

Automatic increases of operating costs (inflation) will be evaluated each year on the anniversary of the signing of the agreement. This increase will be adjusted according to the US Government Consumer Price Index (CPI). This will specifically be calculated by the Inflation Calculator.

Cancellation Policy

The Agreement shall remain in full force and effect until terminated by either party. Either party may terminate this Agreement for any reason by providing the other party ninety (90) days prior notice; provided that, MPD Global may immediately terminate or suspend access to the Virtual Filing Room and this Agreement upon notice for Tuesday Production’s or its users’ violation of the Acceptable Use Policy. Upon any termination of this Agreement, MPD Global will not refund, and Tuesday Productions is not eligible for, any remaining portion of any monthly fee that already has been charged.

Effect of Termination

Should this Agreement be terminated for any reason, MPD Global will not be liable to Tuesday Productions because of such termination for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with Tuesday Production’s business, or for any other reason whatsoever flowing from such termination. Tuesday Productions is solely responsible for procuring any new or replacement service upon termination. Any termination of this Agreement shall not relieve Tuesday Productions of any obligations to pay fees and costs accrued prior to the termination date and any other amounts owed by Tuesday Productions to MPD Global as provided in this Agreement.

Source Code Escrow

MPD Global recognizes that Tuesday Productions will be reliant on the VFR for its daily operations. Thus, in the event that MPD Global chooses to discontinue the Virtual Filing Room for use by any and all clients for any reason, the source code and documentation will be readily available for Tuesday Productions to continue to use on any servers and with whatever company they choose to have maintain the VFR system. MPD Global will provide the support necessary to make this transition as smooth as possible.

In the event of MPD Global discontinuing the VFR, the source code shall be released by KFD Services to Tuesday Productions to use as they require to continue their operations. Any code or revision updates will be sent to KFD Services to hold in the event described above.

Please note that the code will ONLY be released for Tuesday Productions’ use upon specific release by MPD Global, or if all agents of MPD Global are no longer able to legally function. (ie, death)

Limitation of Liability

MPD GLOBAL SHALL HAVE NO LIABILITY FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF MPD GLOBAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MPD GLOBAL HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. THE TOTAL LIABILITY OF MPD GLOBAL TO TUESDAY PRODUCTIONS FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO MPD GLOBAL BY TUESDAY PRODUCTIONS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.

Acceptable Use Policy

This Acceptable Use Policy (the “Policy”) describes the proper kinds of conduct and prohibited uses of the Virtual Filing Room as well as all Systems and Services provided by MPD Global. (”MPD Global”). This Policy is not exhaustive and MPD Global reserves the right to modify it at any time, effective upon notice. By using MPD Global’s Services, you agree to abide by the then current version of this Policy.

ANY VIOLATION OF THIS POLICY MAY RESULT IN THE SUSPENSION OR TERMINATION OF THE SERVICES AND SUCH ACTION AS MPD GLOBAL DEEMS APPROPRIATE. ANY REPEATED VIOLATION OF THIS POLICY WILL RESULT IN THE TERMINATION OF THE VIRTUAL FILING ROOM SERVICE AGREEMENT. INDIRECT OR ATTEMPTED VIOLATIONS OF THIS POLICY, AND ACTUAL OR ATTEMPTED VIOLATIONS BY A THIRD PARTY ON YOUR BEHALF, SHALL BE CONSIDERED VIOLATIONS OF THE POLICY BY YOU.

General: MPD Global’s Virtual Filing Room is for use by Tuesday Productions as an online “filing room.” This “Virtual Filing Room” will be populated, modified and its content maintained by Tuesday Productions. Generally, MPD Global does not actively monitor, censor, or directly control any information that is stored on or transmitted over MPD Global’s Systems, including the Virtual Filing Room. MPD Global cannot and does not warrant, verify or guarantee the quality, accuracy, safety or integrity of your content or other materials or information that you or your users may post or access through the Virtual Filing Room. You are solely responsible for all of the Content and Users who will use the Virtual Filing Room.

Illegal or Harmful Uses: MPD Global’s Services and Systems may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation is strictly prohibited. The following non-exhaustive list describes the kinds of illegal or harmful conduct that are prohibited. MPD Global reserves the right to restrict or prohibit any and all uses or content that it determines in its sole discretion is harmful to its systems, network, reputation, good will, other MPD Global customers, or any third party.

  • Excessive Use of Server Resources. The use of programs and scripts that cause excessive stress to servers including, without limitation, chat scripts is prohibited on shared server accounts. This is due to the resultant reduction in resources and deterioration of service for other customers on the same shared server. Determination of excessive use is at MPD Global’s sole discretion, and may result in revision of monthly charges to you.
  • Infringement. Infringement of intellectual property rights or other proprietary rights including, without limitation, material protected by copyright, trademark, patent, trade secret or other intellectual property right used without proper authorization. Infringement may result from the unauthorized copying and posting of pictures, logos, software, articles, musical works, and videos.
  • Illegal Materials. Disseminating or hosting material that is, without limitation, unlawful, libelous, defamatory, obscene, harmful, invasive of privacy or publicity rights, abusive, or otherwise objectionable.
  • Harmful Content. Disseminating or hosting harmful content or software including, without limitation, viruses, Trojan horses, worms, time bombs, cancelbots or any other computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system, program, data or personal information.
  • Fraudulent Conduct. Offering or disseminating fraudulent goods, services, schemes, or promotions (i.e., make money fast schemes, chain letters, and pyramid schemes); fraudulent submission or use of personal or financial information; or engaging in any practice that constitutes an unfair or deceptive trade practice.
  • Export Violations. Posting or sending of software or technical information in violation of U.S. export laws, including, without limitation, the Export Administration Regulations maintained by the Department of Commerce.
  • Privacy. Collecting, using and disclosing any personally identifiable user information in violation of any applicable law and/or stated privacy policy.

Security and Integrity: Violations of system or network security are prohibited, and may result in criminal and civil liability. MPD Global will investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:

  • Hacking. Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.
  • Interception. Unauthorized monitoring of data or traffic on any network or system of MPD Global or any third party.
  • Intentional Interference. Interference with service to any user, host or network including, but not limited to, denial of service attacks, mail bombing, news bombing, other flooding techniques, deliberate attempts to overload a system and broadcast attacks.
  • Falsification of Origin. Forging of any TCP-IP packet header, e-mail header or any part of a message header. This prohibition does not include the use of aliases or anonymous re-mailers.
  • Avoiding System Restrictions. Using manual or electronic means to modify usage details for billing reasons or to avoid any use limitations placed on the Services such as access and storage restrictions.

Enforcement: MPD Global reserves the right, but does not assume the obligation, to investigate any violation of this Policy or misuse of MPD Global’s Systems. As described in the Virtual Filing Room Service Agreement, MPD Global reserves the right and has absolute discretion to (a) enforce this Policy and the terms of the Virtual Filing Room Agreement and (b) remove or disable access, screen or edit any Content that violates these provisions or is otherwise objectionable. Without limitation, MPD Global also reserves the right to report any activity (including the disclosure of appropriate information) that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. MPD Global also may cooperate with appropriate law enforcement agencies to assist in the investigation and prosecution of any illegal conduct by providing network and systems information related to allegedly illegal, harmful or objectionable content.

 
hosting/vfr_service_agreement.txt · Last modified: 07/21/2006 15:12 by mdotson
 
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