Last Updated: February 1, 2012
Ustream, Inc. ("Ustream," "we" or "us") provides content streaming and social networking services that enable the sharing of live and recorded video and audio content and chat via the Internet, mobile and other data delivery means through use of Ustream’s proprietary video player service and syndication platform (any and all of the foregoing (the "Services") and our websites accessible at http://www.ustream.tv and http://www.ustream.com (collectively the "Site"). The Services include Ustream’s proprietary embeddable video players (each a “Ustream Player”), the Ustream channels, our software applications and related technology (including any updates, new versions or new releases thereof) including, but not limited to, our Viewer, Broadcaster and Recorder Applications (each a “Ustream Application”), and any other products and services offered by Ustream via the Site and Services.
Certain areas of the Site and Services (and your access to or use of Content (defined below)) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms of Service and terms and conditions posted for a specific area of the Site, Services or Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Services or Content.
YOU UNDERSTAND THAT BY CLICKING THE "I AGREE" BUTTON, OR BY USING THE SITE, SERVICES (INCLUDING ANY CONTENT PROVIDED THEREIN), OR YOUR ACCOUNT, OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE OR THROUGH THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE, SERVICES OR CONTENT. If you agree to these Terms of Service on behalf of a business, you represent and warrant that you have the authority to bind that business to these Terms of Service and your agreement to these terms will be treated as the agreement of the business. In that event, "you" and "your" will refer and apply to that business.
1. Eligibility and Registration.
In order to access certain features of the Site and Services, and to post User Submissions, you will have to create a Ustream account and become a "Member". To become a Member you must be at least 13 years of age and only Members that are at least 18 years of age may purchase access to Premium Content (defined below) as further described in Section 6. If you are not a Member you may browse all areas of the Site or use the parts of the Services that are not limited to Members only.
When you register, you will be asked to choose a username and a password. You are responsible for safeguarding your password and you agree not to disclose your password to any third party. You agree that you will be solely responsible for any activities or actions taken under your password, whether or not you have authorized such activities or actions. You will immediately notify Ustream of any unauthorized use of your password. You agree that the information that you provide to us upon registration, and at all other times will be true, accurate, current and complete. Without limiting any other terms of this Terms of Service, you may not use false identities or impersonate any other person or use a username or password that you are not authorized to use. Ustream reserves the right to require you to change your username for any reason and may do so at anytime.
Ustream reserves the right, at its sole discretion, to modify, discontinue or terminate the Site and Services, or to modify these Terms of Service, at any time and without advance notice. However, changes made to these Terms of Service will not apply to you to the extent that (i) the changes concern matters which are the subject of an actual dispute between you and Ustream as of the date the changes take effect and (ii) Ustream has actual notice of the dispute as of the date the changes take effect. If we modify these Terms of Service, we will post the modification on the Site or within the Services or provide you with notice of the modification. We will also update the “Last Updated Date” in these Terms of Service. If any modified terms and conditions are not acceptable to you, your sole remedy is to cease using the Site and Services, and if applicable, cancel your Ustream account. By continuing to access or use the Site and Services after Ustream makes any such revision, you agree to be bound by the revised Terms of Service.
3. Termination and Ustream Account Cancellation.
- a. Without limiting other remedies, Ustream may immediately terminate or suspend your access to the Site and Services and remove any material (including User Submissions) from the Site or our servers, in the event that you breach these Terms of Service. Notwithstanding the foregoing, we also reserve the right to terminate the Site, Services or your access thereto at any time and for any reason. In addition, Ustream may notify authorities or take any actions it deems appropriate, without notice to you, if Ustream suspects or determines, in its own discretion, that you may have or there is a significant risk that you have: (i) failed to comply with any provision of these Terms of Service or any policies or rules established by Ustream; or (ii) engaged in actions relating to or in the course of using the Site or Services that may be illegal or cause liability, harm, embarrassment, harassment, abuse or disruption for you, Ustream Users, Ustream or any other third parties or the Site or Services.
- b. You may terminate your Ustream account at any time and for any reason by selecting "Close Account" in your account preferences. Upon any termination by a Member, the related account will no longer be accessible.
- c. After any termination, you understand and acknowledge that we will have no further obligation to provide the Services. Upon termination, all licenses and other rights granted to you by these Terms of Service will immediately cease. Ustream is not liable to you or any third party for termination of the Services or termination of your use of the Services. UPON ANY TERMINATION OR SUSPENSION, ANY INFORMATION (INCLUDING USER SUBMISSIONS) THAT YOU HAVE SUBMITTED ON THE SITE OR THAT WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU. Furthermore, Ustream will have no obligation to maintain any information stored in our database related to your account or to forward any information to you or any third party.
- d. Any suspension, termination or cancellation will not affect your obligations to Ustream under these Terms Service (including but not limited to ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.
4. Copyrighted Materials: No Unauthorized Use.
YOU WILL NOT USE THE SITE OR SERVICES TO TRANSMIT, ROUTE, PROVIDE CONNECTIONS TO OR STORE ANY MATERIAL THAT INFRINGES COPYRIGHTED WORKS OR OTHERWISE VIOLATES OR PROMOTES THE VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. Ustream has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users or Members who repeatedly infringe or are believed to be infringing the rights of copyright holders. Please see the Ustream Copyright and IP Policy for further information.
5. Intellectual Property Rights and Ownership; Limitations.
- a. Definitions. Certain types of content are made available through the Site. "Content" as used in these Terms of Service means, collectively, the text, data, graphics, images, photos and video files made available by Ustream through the Site and Services, excluding User Submissions. "User Submissions" as used in these Terms of Service means, collectively, the text, data, graphics, images, photos and video files and other content and information which Members or our other third party licensors stream, post, upload and otherwise submit to the Site and Services, including without limitation in broadcast chats, discussion groups, message boards and Member created profile pages. Ustream reserves the right to remove and permanently delete any Content or User Submissions from the Site without notice. We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting publishing or otherwise making available any User Submissions, emails or other materials that are believed to violate these Terms of Service.
- b. Content. Subject to your compliance with these Terms of Service, you may access and use the Site, Services, Content and User Submissions for your own personal non-commercial use. Any commercial use of the Site, Services, Content or User Submission requires Ustream prior written approval (e.g., pursuant to additional or separate terms and conditions provided by Ustream). You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services, Content, User Submissions or related products and services and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Site, Content, User Submissions (other than your User Submissions). Notwithstanding you may distribute certain Content or User Submissions, solely where Ustream makes the means for distribution of such Content or User Submissions possible via a Ustream Player. Ustream and its licensors own all right, title and interest, including all worldwide intellectual property rights in the Site, Services, Content and the trademarks, service marks and logos contained therein other than your User Submissions.
- c. User Submissions.
- i. License Grant. Ustream does not claim ownership rights in your User Submissions. However, by uploading, streaming, submitting, emailing, posting, publishing or otherwise transmitting any User Submission to Ustream on the Site or to the Services, you hereby grant Ustream a non-exclusive, worldwide, royalty-free, sublicensable, perpetual and irrevocable right and license to use, reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast and otherwise exploit such User Submissions in any form, medium, device or technology now known or later developed, including without limitation on third party websites and platforms where the Services are syndicated. For example, Ustream will have the right to insert, place or include all types of advertisements within or around your User Submissions, including without limitation to running or streaming pre-rolls, mid-rolls, post-rolls, overlays, banners, campaign and companion ads and any other type of advertising units in connection with your User Submission. You represent and warrant that you own or have the necessary licenses, rights, consents and permissions to grant the foregoing licenses to Ustream. You agree to execute and deliver such documents and provide all assistance reasonably requested by Ustream to give to Ustream the full benefit of the rights granted to Ustream by you.
- ii. Limitations. You acknowledge and agree that Ustream may, at its option, establish limits concerning User Submissions, including without limitation the maximum number of days that User Submissions will remain on the Site, the maximum size of any files that may be stored on or uploaded to the Site, and the maximum disk space that will be allotted to you for the storage of User Submissions on Ustream's servers. User Submissions that exceed 10GB or any established limit (“Storage Limitation”) at any time throughout your use of the Site will be deleted by Ustream, with or without advance notice to you. Ustream will delete the User Submissions (in whole or partial) from your account until your account is below the Storage Limitation. Ustream will have no responsibility or liability for User Submissions that are deleted for exceeding any established limit. Ustream will have no responsibility or liability for and you are solely responsible for creating back-ups of your User Submissions. Ustream reserves the right to change, suspend or discontinue part or all of any limits concerning User Submissions at any time, for any reason, without notice and without explanation.
- iii. Disclaimer. Ustream has no ability to control the User Submissions that are uploaded, posted or otherwise transmitted using the Site or Services and does not have any obligation to monitor such User Submissions for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the User Submissions or anything said, depicted or written by Members, including without limitation any information obtained by using the Site. Ustream does not endorse any User Submission or any opinion, recommendation, or advice expressed therein and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Ustream with respect thereto. Ustream will have no responsibility or liability to you or any third party as a result of your lifecasting activities and you are solely responsible for any lifecasting you do in connection with or via the Site or Services.
6. Fees and Payment.
- a. Fees for Access to Content. Access to certain premium content (the “Premium Content”) may require a subscription or access fee. Members may be able to access Premium Content by (i) paying a monthly subscription fee to access certain Premium Content for the applicable time period (“Subscription Fee”); or (ii) paying a one time fee to access certain Premium Content at a designated time (“PayPerView Fee”).
- b.Fees for the Services. The Services may be made available in free or paid versions, different service levels and/or different service plans. Not all of the features and functionality of the Services may be available in each version, service level or service plan. Separate or additional usage and/or overage charges may apply to different versions, service levels or service plans. Ustream reserves the right to change, suspend or discontinue part or all of any version, service level or service plan at any time, for any reason, without notice and without explanation.
- c. In order to register for or use a paid version of the Services, or a version, service level or service plan to which usage and/or overage charges may apply, you may be required to provide Ustream with billing and account information ("Billing Information") for a credit card, payment card or another payment system, such as PayPal, for which you are authorized to approve charges (each, a "Payment Source") to allow Ustream to collect payment from you for your use of the Services. You must provide Ustream with true, accurate, current and complete Billing Information and maintain and promptly update your Billing Information to keep it true, accurate, current and complete.
- d. You authorize Ustream to automatically and immediately bill your Payment Source when charges for your use of the paid version of the Services are due, without any further action on your part or other prior notice on the part of Ustream. You assume full responsibility for such charges, even if such charges are declined or not paid by your Payment Source.
- e. If your Payment Source is invalid, if charges billed to your Payment Source are declined or not paid or if you fail to pay charges for a paid version of the Services when due, your account may be downgraded, suspended or cancelled, at Ustream's discretion. If your account is suspended, Ustream may, but is not obligated to, maintain your account and/or related content and information, in order to allow you pay the past-due charges and restore your account. If the charges are not paid, your account may be cancelled.
- f. All fees are non-refundable and non-transferable except as expressly provided in these Terms of Service. Transactions you complete through the Site and Services may include sales tax based on the bill-to address and the applicable sales tax rate in effect at the time and location your transaction is completed. You will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with your access to any Premium Content. There is no prorated refund of any fees upon any termination or cancellation. You agree to immediately pay any amounts accrued, but remaining unpaid, as of termination (if any).
7. Ustream Application License.
- a. License Grant. Subject to your compliance with the terms and conditions of these Terms of Service, Ustream grants you limited, non-exclusive, non-transferable license, without the right to sublicense, to download and install a copy of the Ustream Application onto a single mobile device that you own and control and run such copy of the Ustream Application solely for your internal personal use. Furthermore, (i) with respect to any iTunes Store Sourced App (defined below) you will only use the iTunes Store Sourced App as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service; and (ii) notwithstanding the foregoing, with respect to any Windows Sourced App (defined below) you may download and install a copy of the Window Sourced App on up to five (5) mobile devices associated with your “Windows Live ID”. Ustream reserves all rights in the Ustream Application not expressly granted to you in these Terms of Service.
- b. Restrictions. Except as expressly specified in these Terms of Service, you may not (i) copy or modify the Ustream Application, including, but not limited to adding new features or otherwise making adaptations that alter the functioning of the Ustream Application; (ii) transfer, sell, rent, lease, distribute, sublicense or otherwise assign any rights to, or any portion of, the Ustream Application to any third party; or (iii) make the functionality of the Ustream Application available to multiple users through any means, including, but not limited to distribution of the Ustream Application or by uploading the Ustream Application to a network or file-sharing service or through any hosting, application services provider or any other type of service. The Ustream Application contains trade secrets, and in order to protect those secrets you agree not to disassemble, decompile or reverse engineer the Ustream Application, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition. You will comply with any technical restrictions in the Ustream Application that allow you to use the Ustream Application only in certain ways.
- c. Updates and Upgrades; No Obligation. Ustream is not obligated to maintain or support the Ustream Application, or to provide you with updates, upgrades or services related thereto. You acknowledge that Ustream may from time to time in its sole discretion issue updates or upgrades to the Ustream Application, and may automatically update or upgrade the version of the Ustream Application that you are using on your mobile device. You consent to such automatic updating or upgrading on your mobile device, and agree that the terms and conditions of these Terms of Service will apply to all such updates or upgrades.
- d.Term and Termination. The license to the Ustream Application granted under these Terms of Service remains in effect for a period of 75 years, unless earlier terminated by you or Ustream in accordance with this provision. You may terminate the license at any time by destroying all copies of the Ustream Application in your possession or control. Without limiting any other terms of these Terms of Service, the license will automatically terminate without notice from Ustream if you breach any terms of these Terms of Service. Upon any termination of these Terms of Service you must cease all use of the Ustream Application and promptly delete and destroy all copies, full or partial, of the Ustream Application.
- e. Proprietary Rights. The copy of the Ustream Application is licensed, not sold, to you. You agree that Ustream and its licensors own all right, title and interest in and to the Ustream Application, including all intellectual property rights therein, and that Ustream retains ownership of all copies of the Ustream Application even after installation on your mobile device. The Ustream Application is protected by United States copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Ustream Application as delivered to you.
- f. Third Party Code. The Ustream Application is distributed with certain independent code that is licensed under open source licenses (“Open Source Code”) and such Open Source Code is licensed to you in accordance with the applicable open source licenses. To the extent that any of the terms and conditions of these Terms of Service conflict with any such open source licenses, the conflicting terms and conditions will not apply to the corresponding Open Source Code. You can find information regarding the applicable licenses for the Open Source Code by visiting http://www.ustream.tv/opensource.
- g. U.S. Government End Users. The Ustream Application and related documentation are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Ustream Application and related documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Ustream Application and related documentation will be only those specified in these Terms of Service.
- h. Export Control. You may not use, export, re-export, import, or transfer the Ustream Application except as authorized by United States law, the laws of the jurisdiction in which you obtained the Ustream Application, and any other applicable Laws. In particular, but without limitation, the Ustream Application may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Ustream Application, you represent and warrant that you are not located in any such country or on any such list. You also will not use the Ustream Application for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
- i. Ustream Application from iTunes. Without limiting any other terms of these Terms of Service, the following applies to any Ustream Application accessed through or downloaded from the Apple iTunes Store (“iTunes Store Sourced App”):
- You acknowledge and agree that (i) these Terms of Service are concluded between you and Ustream only, and not Apple, and (ii) Ustream, not Apple, is solely responsible for the iTunes Store Sourced App and content thereof. Your use of the iTunes Store Sourced App must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes Store Sourced App.
- In the event of any failure of the iTunes Store Sourced App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes Store Sourced App to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes Store Sourced App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Ustream’s sole responsibility.
- You and Ustream acknowledge that, as between Ustream and Apple, Apple is not responsible for addressing any claims of you or any third party relating to the iTunes Store Sourced App or your possession and use of the iTunes Store Sourced App, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes Store Sourced App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and Ustream acknowledge that, in the event of any third party claim that the iTunes Store Sourced App or your possession and use of that iTunes Store Sourced App infringes that third party’s intellectual property rights, as between Ustream and Apple, Ustream, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Service.
- You and Ustream acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service as related to your license of the iTunes Store Sourced App, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service as related to your license of the iTunes Store Sourced App against you as a third party beneficiary thereof.
- Without limiting any other terms of these Terms of Service, you must comply with all applicable third party terms of agreement when using the iTunes Store Sourced App, including, without limitation, any terms and conditions governing your use of a social networking service (“SNS”).
- If you have any questions, complaints or claims with respect to any iTunes Store Sourced App you may contact Ustream by emailing firstname.lastname@example.org or mailing us at Ustream, Inc. at 410 Townsend Street, Ste 400, San Francisco, CA 94107.
- j. Ustream Application from Windows® Phone Marketplace. Without limiting any other terms of these Terms of Service, the following applies to any Ustream Application accessed through or downloaded from the Windows® Phone Marketplace (“Windows Sourced App”):
- You acknowledge that Microsoft, your phone manufacturer, and your network carrier are not responsible for providing support services for the Window Sourced App.
- DISCLAIMER OF WARRANTIES. THE WINDOW SOURCED APPLICATION IS LICENSED “AS-IS,” “WITH ALL FAULTS” AND “AS AVAILABLE”. YOU BEAR THE RISK OF USING THE WINDOW SOURCED APPLICATION. USTREAM ON BEHALF OF ITSELF, MICROSOFT, WIRELESS CARRIERS OVER WHOSE NETWORK THE APPLICATION IS DISTRIBUTED, AND EACH OF MICROSOFT’S RESPECTIVE AFFILIATES, AND SUPPLIERS (“DISTRIBUTORS”), GIVES NOT EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS UNDER OR IN RELATION TO THE WINDOWS SOURCED APP. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS WHICH THESE TERMS OF SERVICE CANNOT CHANGE, TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, DISTRIBUTORS EXCLUDE ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES. TO THE EXTENT NOT PROHIBITED BY LAW, YOU CAN RECOVER FROM USTREAM ONLY DIRECT DAMAGES UP TO THE AMOUNT YOU PAID FOR THE WINDOWS SOURCED APP. YOU AGREE NOT TO SEEK TO RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES FROM ANY DISTRIBUTOR. This limitation applies (i) to anything related to the Window Sourced Application, services made available through the Window Sourced Application, or content (including code) on third party Internet websites; and (ii) to claims for breach of contract, breach of warranty, guarantee or conditions, strict liability, negligence, or other tort to the extent permitted by applicable law, even if repair, replacement or a refund for the Window Sourced Application does not fully compensate you for any losses; or a Distributor knew or should have known about the possibility of the damages.
8. Interactions between Ustream Users.
You are solely responsible for your interactions (including any disputes) with other Ustream Users. You understand that Ustream does not in any way screen Ustream Users. You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using the Site and Services and disclosing personal information to other Ustream Users. You agree to take reasonable precautions in all interactions with other Ustream Users, particularly if you decide to meet a Ustream User offline, or in person. Your use of the Site, Services, Content and any other information or other materials made available through the Site or Services is at your sole risk and discretion and Ustream hereby disclaims any and all liability to you or any third party relating thereto. Ustream reserves the right to contact Members, in compliance with applicable law, in order to evaluate compliance with the rules and policies in these Terms of Service. You will cooperate fully with Ustream to investigate any suspected unlawful, fraudulent or improper activity, including, without limitation, granting authorized Ustream representatives access to any password-protected portions of your Ustream account.
Without limiting the terms of Section 5(c)(iii), Ustream may in its sole discretion review and/or record broadcast chat exchanges and/or other communications engaged in via the Site or Services, in accordance with applicable law, in order to evaluate compliance with the rules and policies set forth in these Terms of Service or as otherwise technically necessary.
9. Obligations for Ustream Users.
- a. General Prohibitions. The Site and Services may be used and accessed for lawful purposes only. You agree to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with your use of the Site and Services. In addition, without limitation, you agree that you will not do any of the following while using or accessing the Site or Services:
- i. Circumvent, disable or otherwise interfere with security related features of the Site or Services or features that prevent or restrict use or copying of any Content;
- ii. Modify, obscure or interfere with any portion or functionality of a Ustream Player, including but not limited to links back to the Site or Services.
- iii. Upload, stream, email or otherwise transmit (i) any User Submission to which you do not have the lawful right to copy, transmit and display (including any User Submission that would violate any confidentiality or fiduciary obligations that you might have with respect to the User Submission); (ii) any User Submission for which you do not have the consent or permission of each identifiable person in the User Submission to use the name, voice, signature, photograph, or likeness of each such person (to the extent each is implicated by the User Submission) and such consent or permission is necessary; or (iii) any User Submission that infringes the intellectual property rights or violates the privacy rights of any third party (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity);
- iv. Use any meta tags or other hidden text or metadata utilizing a Ustream name, trademark, URL or product name;
- v. Upload, stream, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, "pyramid schemes" or any other form of solicitation;
- vi. Forge any TCP/IP packet header or any part of the header information in any posting or in any way use the Site or Services to send altered, deceptive or false source-identifying information;
- vii. Upload, stream, email, or otherwise transmit, via the Site or Services, any User Submissions that are unlawful, obscene, harmful, threatening, harassing, defamatory or hateful or that contain objects or symbols of hate, invade the privacy of any third party, contain nudity (including without limitation any pornography, erotica, child pornography or child erotica), are deceptive, threatening, abusive, inciting of unlawful action, defamatory, libelous, vulgar or violent or constitute hate speech or are otherwise objectionable in the opinion of Ustream;
- viii. Upload, stream, email, or otherwise transmit any User Submissions that contain software viruses or any other computer code, files, or programs designed to (i) interrupt, destroy or limit the functionality of any computer software; or (ii) interfere with the access of any user, host or network, including without limitation sending a virus, overloading, flooding, spamming or mail-bombing the Site;
- ix. Upload, stream, email or otherwise transmit any User Submissions that include code that is hidden or otherwise surreptitiously contained within the images, audio or video of any User Submissions that is unrelated to the immediate, aesthetic nature of the User Submissions;
- x. Interfere with or disrupt (or attempt to interfere with or disrupt) any web pages available on the Site or Services, servers or networks connected to the Site or Services or the technical delivery systems of Ustream's providers or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Services;
- xi. Attempt to probe, scan or test the vulnerability of any Ustream system or network or breach or impair or circumvent any security or authentication measures protecting the Site or Services (including any Content or User Submissions available in a Ustream Player);
- xii. Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site or Services;
- xiii. Attempt to access, search or meta-search the Site or Services with any engine, software, tool, agent, device or mechanism other than software and/or search agents provided by Ustream or other generally available third party web browsers (such as Microsoft Internet Explorer, Mozilla Firefox, Safari, or Opera), including without limitation any software that sends queries to the Site or Services to determine how a website or web page ranks.
- xiv. Collect or store personal data about other users without their express permission;
- xv. Impersonate or misrepresent your affiliation with any person or entity, through pretexting or some other form of social engineering or otherwise commit fraud;
- xvi. Use the Site or Services in any manner not permitted by these Terms of Service; or
- xvii. Encourage or instruct any other individual to do any of the foregoing or to violate any term of these Terms of Service.
- b. Obligations to Third Parties. If you have obligations to any third party, as a non limiting example, such as under the terms, conditions or policies of a SNS, you and not Ustream are responsible for your compliance with those obligations. By allowing you to use the Site and Services, Ustream does not suggest, warrant or guaranty that your access to any third party service in connection with your use of the Site or Services is permitted by that third party service, nor does Ustream suggest, warrant or guaranty that your use complies with any laws or regulations that may apply to your use of any third party service. Ustream is not liable for your failure to comply with any applicable local, state, national and foreign laws, treaties and regulations or any contracts, rules, policies or procedures applicable to your activities while you use the Site and Services or third party service.
10. Sweepstakes and Contests.
Ustream may operate sweepstakes, contests and similar promotions (collectively, "Promotions") through the Site or Services. You should carefully review the rules (e.g., the "Official Rules") of each Promotion in which you participate through the Site or Services, as they may contain additional important information about Ustream's rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotion. To the extent that the terms and conditions of such Official Rules conflict with these Terms of Service, the terms and conditions of such Official Rules will control.
11. Disclaimer of Warranties.
Your use of the Site, Services, Content and User Submissions is at your sole discretion and risk. The Site, Services, Content and User Submissions, and all materials, information, products and services included therein, are provided on an "AS IS" and "AS AVAILABLE" basis without warranties of any kind. USTREAM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SITE, SERVICES, CONTENT AND USER SUBMISSIONS, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING OR COURSE OF PERFORMANCE. Ustream disclaims any warranties: (i) regarding the security, accuracy, reliability, timeliness and performance of the Site or Services; or (ii) that the Site, Services, Content and User Submissions will be error-free or that any errors will be corrected. No advice or information, whether oral or written, obtained by you from Ustream, will create any warranty not expressly stated in these Terms of Service. Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to you.
12. Limitation of Liability.
IN NO EVENT WILL USTREAM, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE, SERVICES, CONTENT AND USER SUBMISSIONS WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT USTREAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION AND IN NO EVENT WILL USTREAM'S CUMULATIVE LIABILITY TO YOU EXCEED $100.
You agree to defend, indemnify, and hold Ustream, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney's fees and costs, arising out of or in any way connected with (i) your access to or use of the Site, Services, Content and User Submissions; (ii) your violation of these Terms of Service; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party, including without limitation claims that your User Submissions are infringing.
14. Third Party Links.
The Site and Services may provide links to third party websites or resources from the Site or Services. You acknowledge and agree that Ustream is not responsible or liable for the availability or accuracy of, and Ustream does not endorse, such websites or resources or the content, products, or services on or 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.
15. Feedback and Independent Development.
Your feedback is welcome and encouraged. You may submit feedback by emailing us at email@example.com or via other portions of the Site. You agree, however, that: if you elect to provide suggestions, ideas, proposals, concepts or other feedback to us (whether written, verbal or in any other format or manner) in connection with these Terms of Service or use of our Site or Services (“Feedback”), you acknowledge and agree that we have no obligation (whether of confidentiality, compensation or otherwise) with respect to such Feedback and we will be free to use and exploit the same in any manner without restriction of any kind. You acknowledge and agree that all Feedback will be the sole and exclusive property of Ustream. You hereby irrevocably transfer and assign to Ustream and agree to irrevocably transfer and assign to Ustream all of your right, title, and interest in and to all Feedback, including all Intellectual Property Rights therein. At Ustream’s request and expense, you will execute documents and take such further acts as Ustream may reasonably request to assist Ustream to acquire, perfect and maintain its intellectual property rights and other legal protections for the Feedback. Further, you acknowledge and agree that Ustream is engaged in creating and developing its own programs, plans and projects so it is possible that we are already independently developing products services, plans and projects that are quite similar and/or competitive with your Feedback (including the concepts contemplated by or embodied therein). Nothing in these Terms of Service will be construed as a representation or agreement that we will not develop or have developed, distribute, market or promote applications, services, products, concepts, systems or techniques that are similar to and/or compete with the applications, services, products, concepts, systems or techniques contemplated by or embodied in any Feedback or compensate you or provide you with any input or response with regard to your Feedback.
- a. No Assignment. You will not assign these Terms of Service or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Ustream. Any purported assignment or delegation by you without the appropriate prior written consent of Ustream will be null and void. Ustream may assign these Terms of Service or any rights hereunder without your consent.
- b. Relationship of the Parties. For purposes of these Terms of Service, including if you become a Member and create an account, you are not an employee or agent of Ustream, and you will not represent that you are any of the foregoing. Each party will be independent and act independently and not as a contractor, partner, joint venturer, agent, employee or employer of the other and will not bind or attempt to bind the other to any contract. Each party will be solely responsible for their own costs and expenses incurred in the performance of their obligations under these Terms of Service, including without limitation any expenses associated with the implementation of these Terms of Service.
- c. Severability and Waiver. In the event that any provision in these Terms of Service is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. The failure of Ustream to enforce any right or provision of these Terms of Service will not be deemed a waiver of such right or provision.
- d. Force Majeure. Ustream will not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, extraordinary Internet congestion or extraordinary connectivity issues experienced by major telecommunications providers and unrelated to Ustream infrastructure or connectivity to the Internet, or failure at Ustream co-location facility, (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, Ustream will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues.
- e. Governing Law. These Terms of Service and the relationship between you and Ustream will be governed by the laws of the State of California without regard to its conflict of law provisions. You and Ustream agree to submit to the personal and exclusive jurisdiction of the courts located in San Francisco County, California.
- f. Entire Agreement. These Terms of Service are the entire and exclusive agreement between Ustream and you regarding the Site, Content, and Services and supersede and replace any prior agreements between Ustream and you regarding the Site and Services.
- g. Notice. Any notice or other communication to be given hereunder will be in writing and given (a) by Ustream via email (in each case to the address that you provide), (b) a posting on the Site or (c) by you via email to firstname.lastname@example.org or to such other addresses as Ustream may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
- h. Questions. If you have questions about these Terms of Service or would like to request a copy of these Terms of Service or any other records relating to these Terms of Service of your use of the Site and Services, please contact Ustream at email@example.com or by sending a written request to Ustream, Inc. at 410 Townsend Street, Ste 400, San Francisco, CA 94107.