2257Sentry Terms of Use
This Third Party Custodian User Agreement ("Agreement") is between you ("Producer") and 2257Sentry, LLC ("Custodian"). By clicking “Accept”, Producer agrees that he/she has read and agrees with this Agreement and intends to be bound thereby.
1. Definitions
a. "Attorney General" means the U.S. Attorney General and its designated agents, representatives, and subordinates
b. ”Authorized User” means Producer’s employees, consultants, contractors, and agents who are authorized by Producer to access and use the Services under the rights granted to Producer pursuant to this Agreement.
c. ”Custodian IP” means the Services, and any and all intellectual property provided to Producer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP does not include Producer Data.
d. ”Producer Data” meansinformation, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Producer or an Authorized User through the Services.
e. "Record" is any Producer Data pertaining to a specific performer or visual depiction, including copies of the visual depiction, as well as a performer's identification document and/or picture identification card.
f. “Services”means the software-as-a-service offering provided at 2257Sentry.com.
g. “Visual Depiction” has the same meaning as set forth in 18 USC §2256(5).
2. Access and Use
a. Provision of Access. Subject to and conditioned on Producer’s payment of fees and compliance with all other terms and conditions of this Agreement, Custodian hereby grants Provider a non-exclusive, non-transferable right to access and use the Services during the term of this Agreement, solely for use by Authorized Users in accordance with the terms and conditions herein, for a single Producer website domain. Such use is limited to Producer’s internal use. Custodian shall provide to Producer the necessary passwords to allow Producer to access the Services.
b. Use Restrictions. Producer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Producer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services; or (v) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
c. Reservation of Rights. Custodian reserves all rights not expressly granted to Producer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Producer or any third party any intellectual property rights or other right, title, or interest in or to the Custodian IP.
d. Suspension. Notwithstanding anything to the contrary in this Agreement, Custodian may temporarily suspend Producer’s and any Authorized User’s access to any portion or all of the Services if: (i) Custodian reasonably determines that (A) there is a threat or attack on any of the Custodian IP; (B) Producer’s or any Authorized User’s use of the Custodian IP disrupts or poses a security risk to the Custodian IP or to any other customer or vendor of Custodian; (C) Producer, or any Authorized End User, is using the Custodian IP for fraudulent or illegal activities; (D) subject to applicable law, Producer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Custodian’s provision of the Services to Producer or any Authorized User is prohibited by applicable law; or (ii) any vendor of Custodian has suspended or terminated Custodian’s access to or use of any third-party services or products required to enable Producer to access the Services (any such suspension described in subclause (i) or (ii), a “Service Suspension”). Custodian shall use commercially reasonable efforts to provide written notice of any Service Suspension to Producer and to provide updates regarding resumption of access to the Services following any Service Suspension. Custodian shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Custodian will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Producer or any Authorized User may incur as a result of a Service Suspension.
3. Non-Employee Custodian of Records
a. In consideration of the fees payable by Producer, Custodian hereby agrees to act as the non-employee custodian of records as defined in 28 CFR §75.2(h). Custodian assumes no responsibility for the content, accuracy, or completeness of any Record provided to Custodian by Producer.
b. Custodian will store valid Records for seven (7) years from the date such Records are received by Custodian.
c. Producer may identify Custodian as its non-employee custodian of records for only those valid Records received and accepted by Custodian, and shall use and display the compliance statement as provided to Producer from Custodian on a single website domain.
d. Valid Records will be available for inspection by the Attorney General at the premises of Custodian.
e. Custodian shall not use or disclose any Records except as required its compliance with 28 C.F.R. § 75.
4. Producer Obligations
a. Producer is responsible and liable for all uses of the Services resulting from access provided by Custodian, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Producer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Producer will be deemed a breach of this Agreement by Producer. Producer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
b. Producer acknowledges and agrees that except for Custodian’s maintenance and storage of the Records on behalf of Producer, Producer remains solely responsible for all other obligations as set forth in 28 C.F.R. §75 and 18 USC §2257, as well as any other applicable laws or regulations.
c. Producer agrees to maintain duplicate copies of all Records at Producer’s place of business, and shall make such duplicate copies available to Custodian upon request.
d. Producer agrees to promptly notify Custodian of any updates or modifications in the Records, as well as any changes to Producer’s mailing address or contact information. Producer shall remain responsible for all obligations under this Agreement, including the payment of fees pursuant to Section 4, in the event Producer fails to promptly notify Custodian of any changes to the Records or Producer’s contact information.
e. Any digital video discs or videotapes associated with the Records may be stored and maintained by Custodian at Custodian’s then-current rates.
5. Fees
a. Producer hereby authorizes Custodian to charge Producer’s payment card entered below to pay for Producer’s membership Services fees at the then-current standard monthly Services rate. Producer agrees to be personally liable for all charges incurred by Producer during or through the use of the Services. Producer’s liability for such charges shall continue after termination of the Services.
b. Unless and until Producer notifies Custodian that Producer wishes to cancel or terminate the Services, Producer hereby agrees and authorizes 2257Sentry, LLC or its designated agent or assignee to automatically renew the Services on a continuing monthly (or annual, if selected by Producer) basis and to charge Producer’s payment card (or other approved facility) to pay for the ongoing feesfor the Services.
c. Producer further agrees that Producer must promptly inform Custodian of any and all the following: loss or theft of the payment card used to pay for the Services; changes in the expiration date of the payment card; changes in billing address; and all other changes pertaining to Producer’s payment card account used to pay for Services pursuant to this Agreement which may affect Custodian’s ability to expeditiously obtain payments due to Custodian. Producer agrees that Producer will remain liable for any unauthorized use of the Services, until Producer has notified Custodian by email at info@2257sentry.com.
d. In the event Producer’s financial institution rejects Producer’s payment card (or other approved facility) transaction or any fraudulent claims are made on any of Producer’s payment card (or other approved facility) transactions, Producer acknowledges and agrees that Custodian reserves the right to charge Producer’s payment card (or other approved facility) US$30.00 per chargeback.
e. If Producer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Custodian may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Producer shall reimburse Custodian for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Custodian may suspend Producer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
6. Intellectual Property Ownership
a. Custodian IP. Producer acknowledges that, as between Producer and Custodian, Custodian owns all right, title, and interest, including all intellectual property rights, in and to the Custodian IP.
b. Producer Data. Custodian acknowledges that, as between Custodian and Producer, Producer owns all right, title, and interest, including all intellectual property rights, in and to the Producer Data. Producer hereby grants to Custodian a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Producer Data and perform all acts with respect to the Producer Data as may be necessary for Custodian to provide the Services to Producer.
7. Term and Termination
a. Term. The term of this Agreement begins on the date Producer clicks to accept this Agreement and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until terminated by either party pursuant to this Section 6.
b. TO CANCEL THE SERVICES PRODUCER MUST NOTIFY CUSTODIAN OF CANCELLATION BY EMAIL (AT THE THEN CURRENT E-MAIL ADDRESS AS PROVIDED AT WWW.22257SENTRY.COM) WITH AT LEAST THIRTY (30) DAYS NOTICE PRIOR TO THE EXPIRATION OF THE THEN-CURRENT BILLING MONTH.
c. Custodian may terminate this Agreement, effective upon email notice to Producer, if Producer (i) fails to pay any amount when due hereunder, and such failure continues mor than five (5) days after Custodian’s delivery of email notice thereof; (ii) breaches any of its obligations under this Agreement; or (iii) for any reason upon thirty (30) days prior email notice to Producer.
d. Upon termination of this Agreement, Producer must immediately remove any references to Custodian as its custodian of records from any location in which Custodian is identified.
e. Upon termination of this Agreement, Custodian shall have no further obligations to store or maintain the Records, and upon Producer’s request, shall deliver all Records in Custodian’s possession at Producer’s expense.
f. Upon termination of this Agreement, Producer shall immediately discontinue use of the Services and Custodian IP. No termination will affect Producer’s obligation to pay all fees that may have become due before such termination or entitle Producer to any refund.
8. Warranties
a. Custodian warrants to Producer that the Services will be performed in a professional manner, consistent with generally-accepted industry standards. For any breach of the foregoing warranty, Producer’s exclusive remedy, and Custodian’s sole obligation, is the re-performance of the deficient Services.
b. OTHER THAN THE WARRANTY SET FORTH IN SECTION 8(a) ABOVE, THE SERVICES AND CUSTODIAN IP IS PROVIDED “AS IS” AND CUSTODIAN HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. CUSTODIAN SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), CUSTODIAN MAKES NO WARRANTY OF ANY KIND THAT THE CUSTODIAN IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
c. Producer warrants that (1) it and its Authorized Users are solely responsible for the Producer Data submitted to the Services; (2) it has received proper consent and permission of any third party to submit data of such third party to the Services as part of any Record; (3) all performers in any Visual Depiction were at least eighteen (18) years of age at the time the visual depiction of such performer was created; and (4) any digital reproduction of a performer's identification document and/or picture identification card submitted as part of a Record is an authentic reproduction of the original document, except for any redactions to exclude personal information such as the performer's home address or Social Security number.
9. Limitations of Liability
IN NO EVENT WILL CUSTODIAN BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CUSTODIAN WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL CUSTODIAN’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO CUSTODIAN UNDER THIS AGREEMENT IN THE THREE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Indemnification
Producer shall indemnify, hold harmless, and, at Custodian’s option, defend Custodian from and against any losses, damages, liabilities, costs (including attorneys’ fees)(“Losses”) resulting from (i) any breach or violation by Producer or any Authorized User of any of the warranties set forth in Section 8(c); (ii) any errors or omissions in the Records, and/or (iii) Producer’s violation or misappropriation of any third party right, including without limitation any copyright, property, or privacy right. Producer shall further indemnify, hold harmless, and, at Custodian’s option, defend Custodian from and against any Losses resulting from a third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Producer Data, or any use of the Producer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property or privacy rights and any Third-Party Claims based on Producer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Custodian or authorized by Custodian in writing; or (iv) modifications to the Services not made by Custodian, provided that Producer may not settle any Third-Party Claim against Custodian unless Custodian consents to such settlement, and further provided that Custodian will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choiceThis defense and indemnification obligation will survive termination of this Agreement and Producer’s use of the Services.
11. Modifications
Custodian reserves the right to modify these terms and conditions at any time upon at least two (2) days prior email notice to Producer.
12. General
a. Assignment. Producer may not assign this Agreement without Custodian’s prior written consent, which consent shall not be withheld unreasonably.
b. Relationship between the Parties. Custodian is an independent contractor, and nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties.
c. Force Majeure. Except for Producer’s payment obligations under this Agreement, neither party shall be liable for any delay or failure in performance due to causes beyond its reasonable control.
d. Governing Law and Venue. This Agreement and your use of the Services shall be governed by, construed and enforced in accordance with the substantive laws of the Commonwealth of Pennsylvania applicable to contracts made, executed and wholly performed in Pennsylvania, and, for the purposes of any and all legal or equitable actions, Producer specifically agrees and submits to the exclusive jurisdiction and venue of the State and Federal Courts situated in the Commonwealth of Pennsylvania and County of Philadelphia and agrees Producer will not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise; provided, however, that notwithstanding the foregoing, Producer agrees that Custodian has the right to commence and prosecute an action against Producer in connection with this Agreement, in Producer’s home jurisdiction.
e. Waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
f. Severability. If any part of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other parts of the Agreement.
g. No Legal Advice. Custodian does not provide legal advice under this Agreement, and no attorney-client relationship is established by this Agreement.
h. Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof.
Producer represents and warrants that he or she is duly authorized to agree to these terms on behalf of the party he or she represents. Producer has read, understands and agrees to the terms and conditions of this Agreement. This Agreement shall be effective as of the date you click "I agree."