This agreement was written in English. To the extent any translated version of this agreement conflicts with this version, this version controls.
Last updated December 16, 2013
Welcome to Streamup, the website and online service (“Service”) of Streamup, Inc. (“Streamup,” “we,” or “us”). This page explains the terms by which you may use our online services and web site (collectively the “Service”).
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Streamup reserves the right, at its sole discretion, to modify, discontinue or terminate the Site or Services or to modify these Terms of Service, at any time and without prior notice. If we modify these Terms of Service, we will post the modification on the Site or provide you with notice of the modification. We will also update the “Last Updated Date” on these Terms of Service and/or the home page of the Site. By continuing to access or use the Site or the Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms of Service. If the modified Terms of Service are not acceptable to you, your only recourse is to cease using the Site and the Services.
Streamup is currently only available if you are at least 18 years of age, are legally able to be bound by these Terms of Service and have not been previously banned from the site.
By connecting to Streamup with Facebook, Twitter, or manually creating an account, you give us permission to access and use your information.
You may never use another User’s account without permission. You are solely responsible for the activity that occurs on your account. You must notify Streamup immediately of any breach of security or unauthorized use of your account. Streamup will not be liable for any losses caused by any unauthorized use of your account.
You may control your User profile and how you interact with the Service by changing your settings by going to the navigation bar, clicking the gear dropdown, and clicking Settings. By providing Streamup your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service.
The following is prohibited on Streamup:
Streamup reserves the right to decide what behaviors fall into these categories and will make reasonable efforts to deny access to users who do not comply with these terms. However, Streamup makes no guarantee you will not be connected to violators before they are banned. Please report abuse by clicking on the report link, or emailing email@example.com.
You understand and agree that you may be exposed to User Content (as defined below) that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Streamup shall not be liable for any damages you allege to incur as a result of User Content.
The Site may contain links to third-party websites or resources. You acknowledge and agree that Streamup is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Streamup of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Streamup provides a place for social interaction via live video and text chat subject to the prohibitions listed above.
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
You are solely responsible for your interactions with other Streamup Users on the site and otherwise. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Streamup shall have no liability for your interactions with other Users, or for any User’s action or inaction.
Streamup enables you to join video chat channels (“Video chat channels,” “Chat channels,” or “Group video chats”) created on the Service. If you create an account, the Service will also allow you to create video chat channels which other users and guests will be able to join. The video chat channels allow you to stream video and text chat live with other users of the Site. By creating a video chat channel, you agree to act as the moderator of it and to take full responsibility to moderate such video chat channel. You agree to ban and report any participant that you believe is in breach of these Terms of Service or who is otherwise acting inappropriately. If someone reports any content of your chat as illegal, infringing or otherwise in breach of these Terms of Service, you must remove any inappropriate content. If you’re have any uncertainty whether a user in a channel you create is breaking the Terms of Service, we encourage you to err on the side of caution by banning them from your channel and reporting them.
Streamup may for any reason or no reason, in its sole discretion, and without notice, terminate your account, and remove from the site any content associated with your account.
We will report illegal behavior as circumstances warrant and fully cooperate with any law enforcement authorities or court order requiring or directing us to disclose the identity of our users.
Any suspension, termination, or cancellation of your account shall not affect your obligations under these terms (including but not limited to ownership, indemnification, and limitation of liability), which are intended to survive such suspension, termination, or cancellation.
The following provisions apply to users and non-users who interact with Streamup outside the United States:
Streamup provides you with the opportunity to post, upload, publish, broadcast, stream, display, submit or transmit text, words, verbal statements, graphics, images, music, software, audio, video, information or other materials to be made available through the Site and Services (collectively “User Content”). You grant Streamup and its successors a worldwide, non-exclusive, royalty-free, perpetual, sublicensable and transferable license to use, copy, distribute, transmit, modify, prepare derivative works of, publicly display, and publicly perform any such User Content, including without limitation, for the purposes of commercially promoting the site.
You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below. Streamup reserves the right, but is not obligated, to reject and/or remove any User Content that Streamup believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
You have the written consent of each and every identifiable natural person in the User Content to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
Your User Content and Streamup’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
Streamup may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
Streamup does, but subject to your compliance with the terms and conditions of these Terms of Service, Streamup grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and use Streamup and its services for your personal, non-commercial use only. Streamup does not grant you any other express or implied licenses. This license does not allow you to make any commercial use or any derivative use of the site or the services (including any of its individual elements or content). You may not use, copy, record, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit Streamup, its services, its content or its users.
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Streamup Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Streamup and its licensors (including other Users who post User Content to the Service).
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Streamup under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Streamup does not waive any rights to use similar or related ideas previously known to Streamup, or developed by its employees, or obtained from sources other than you.
Streamup takes no responsibility and assumes no liability for any User Content that you or any other User or third party broadcasts or sends over the Service. You shall be solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a conduit for your online broadcast and publication of your User Content.
However, if you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Streamup’s copyright agent as set forth in the Digital Millennium Copyright Act of 1998 (“DMCA”). For your complaint to be valid under the DMCA, you must provide the following information in writing:
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
6000 S.W. 78 St.
Miami, FL 33143
Telephone: (424) 272-1945
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying Streamup and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Streamup’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Streamup has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Streamup may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, COMPANY, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE COMPANY SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO COMPANY HEREUNDER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
You agree to defend, indemnify, and hold Streamup, its affiliates, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your User Content and your access to or use of Streamup or your violation of these Terms of Service.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, SERVICES AND CONTENT, INCLUDING USER CONTENT MADE AVAILABLE BY OTHER MEMBERS, REMAINS WITH YOU. NEITHER STREAMUP NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES OR CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT STREAMUP HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL STREAMUP’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR FROM YOURS USE OF OR INABILITY TO USE THE SITE, SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO STREAMUP FOR USE OF THE SITE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN STREAMUP AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
In the unlikely event that Streamup has not been able to resolve a dispute it has with you after attempting to do so informally, we each agree to resolve any claim, dispute, or controversy (excluding any Streamup claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the American Arbitration Association (“AAA”) in the city of Los Angeles, California under the commercial rules then in effect for the AAA, except as provided herein. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Streamup from seeking injunctive or other equitable relief from the courts as necessary to protect any of Streamup’s proprietary interests. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND STREAMUP ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
These Terms of Service and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. Should the arbitration provision above be found unenforceable for any reason, the exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms of Service will be the state and federal courts located in Los Angeles, California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
These Terms of Service constitute the entire and exclusive understanding and agreement between Streamup and you regarding the Site, Services, Content and User Content, and these Terms of Service supersede and replace any and all prior oral or written understandings or agreements between Streamup and you regarding the Site, Services, Content and User Content.
The failure of Streamup to enforce any right or provision of these Terms of Service will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Streamup. Except as expressly set forth in these Terms of Service, the exercise by either party of any of its remedies under these Terms of Service will be without prejudice to its other remedies under these Terms of Service or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms of Service invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms of Service will remain in full force and effect.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site and Services (“Feedback”). You may submit Feedback by emailing us or by clicking on “Send Feedback” in the footer of Streamup or through the “Help” section of the Site. You acknowledge and agree that all Feedback will be the sole and exclusive property of Streamup and you hereby irrevocably assign to Streamup and agree to irrevocably assign to Streamup all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At Streamup’s request and expense, you will execute documents and take such further acts as Streamup may reasonably request to assist Streamup to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.